'';/ 


Law  In   War 

Bordwell 


TO 

My  Mother. 


PREFACE. 


This  work  is  a  history  of  and  commentary  on  the  laws  of 
war  as  between  belligerents.  Some  time  in  the  future  it  is 
hoped  to  complete  the  treatment  of  the  laws  of  war  by  a 
like  work  on  the  laws  of  war  as  affecting  neutrals  and 
eventually  to  supplement  them  by  a  third  on  amicable 
means  of  settling  international  disputes. 

Part  I  is  a  history  of  war  practice  and  of  the  develop- 
ment of  a  well-recognized  body  of  law  regulating  it.  It 
attempts  to  show  how  changes  have  come  about  in  war 
practice  and  to  show  the  historical  position  of  the  great 
Congresses  and  Conferences  such  as  those  of  Paris,  Geneva 
and  The  Hague.  Especially  is  the  Second  Peace  Confer- 
ence the  subject  of  careful  treatment.  Finally  it  takes  up 
questions  which  have  arisen  in  late  wars  such  as  the  con- 
duct of  the  Germans  in  France,  the  reconcentration  meas- 
ures in  South  Africa  and  the  opening  of  hostilities  in  the 
Russo-Japanese  War,  and  considers  them  in  the  light  of 
International  Law.  The  treatment  of  Russian  subjects  by 
the  Japanese  Government  during  the  Russo-Japanese  "War 
is  given  in  special  detail  in  Appendix  I. 

Part  II  is  intended  to  be  a  thorough  commentary  on  war 
practice  between  belligerents.  Particular  emphasis  is  laid 
on  the  military  as  distinguished  from  the  civil  side  of  the 
laws  of  war.  Comment  is  made  on  the  international  con- 
ventions such  as  those  drawn  up,  at  the  Second  Peace  Con- 
ference, and  the  Regulations  respecting  the  Laws  and  Cus- 
toms of  War  on  Land  and  the  Red  Cross  Conventions  are 
treated  in  great  detail.  For  convenience  of  reference  it 
has  been  thought  best  to  follow  Professor  Westlake  in  re- 
ferring to  the  articles  of  the  Regulations  as  H  I,  H  II,  etc., 
and  to  those  of  the  Geneva  Convention  as  G  I,  Gil,  etc. 
Articles  of  the  naval  Red  Cross  Convention  are  also  re- 
ferred to  as  G  N  I,  G  N  II,  etc.  It  is  hoped  that  this  part 
may  be  of  use  to  army  and  navy  officers  as  a  manual. 

Aside  from  this  practical  purpose,  the  work  is  intended 

(ix) 


X  PREFACE. 

as  a  study  in  law  and  it  is  hoped  that  the  first  part  es- 
pecially will  not  be  without  interest  to  the  general  reader. 

So  many  authorities  are  levied  on  for  contributions  in  a 
book  of  this  kind  that  it  is  hard  to  show  proper  appre- 
ciation without  largely  duplicating  the  list  of  authorities 
cited,  but  of  living  authors  probably  Professor  Nys  and 
Professor  Westlake  have  been  of  the  greatest  assistance; 
the  former,  for  his  researches  in  the  law  of  the  Middle  Ages, 
the  latter  for  his  clearheaded  analysis  of  the  modern  law 
and  especially  his  comments  on  the  work  of  the  Second 
Peace  Conference.  To  Dr.  Masanosuke  Akiyama,  of  Tokio, 
especial  thanks  is  due  for  a  copy  of  his  Traitement  de  Sujets 
Russes  and  permission  to  make  extensive  use  of  the  same. 

It  is  my  further  pleasure  as  well  as  duty  to  express  my 
thanks  here  to  General  George  B.  Davis  for  having  read 
the  manuscript  at  an  earlier  stage;  also  to  the  friends  who 
have  assisted  in  the  manual  preparation  of  the  work  and  to 
the  Faculty  in  Public  Law  and  Jurisprudence  of  Columbia 
University.  To  two  members  of  that  Faculty  especial 
thanks  are  due.  Professor  Munroe  Smith  has  put  me  under 
undying  obligations  by  the  stimulus  of  his  lectures  on  Ro- 
man Law  and  the  History  of  European  Law  and  besides 
has  kindly  read  a  portion  of  the  manuscript  while  Profes- 
sor John  Bassett  Moore,  under  whom  most  of  my  work  was 
done,  has  been  as  a  lamp  unto  my  feet  and  a  light  unto 
my  path.  If  there  be  any  value  in  these  pages,  let  it  be 
regarded  as  the  inspiration  of  his  unfailing  kindness  and 
profound  insight. 

PERCY  BORDWELL. 
New  York,  July  28,  1908. 


TABLE  OF  CONTENTS.  XI 


TABLE  OF  CONTENTS. 


Part    I. 
HISTORY. 


INTRODUCTION 


CHAPTER  I. 

PAGE. 
1 


CHAPTER  II. 

BEFORE   GROTIUS 7 

Among  the  Ancients — Rules  Expanded  from  the  Roman 
Law — German,  Moslem  and  Byzantine  Practice — The  Mid- 
dle Ages  —  Private  Wars  —  Reprisals  —  Influence  of  the 
Church — Dying  out  of  the  Enslavement  of  Prisoners  of  War 
— Chivalry — Henry  V — Swiss  and  Italian  Practice — Piracy. 

CHAPTER  III. 

GROTIUS    AND    HIS    TIMES 26 

The  Renaissance — The  Italian  Writers — The  Spanish  Writ- 
ers— Gentilis— Grotius — The  Condition  of  Warfare  at  the 
Time  he  Wrote— ^His  Work — Its  Influence — Cromwell. 

CHAPTER  IV. 

WARS  OF  PRINCES .^ 36 

Their  Moderation — Declarations  of  War — Substitution  of 
Contributions  for  Pillage — Vattel — Rousseau — Bynkershoek. 

CHAPTER  V. 

THE   REVOLUTIONARY  AND  NAPOLEONIC   STRUGGLES 50 

/ 

The  American  Revolution— Major  Andre — Influence  of  the 


V 


Xll  TABLE    OF    CONTENTS. 

French  Revolutionary  Wars  on  the  Doctrine  of  Conquest — 
Seizure  of  Art  Treasures — Contributions  and  Requisitions. 

CHAPTER  VI. 

THE  PERIOD  OP  PEACE  AND  THE  DECLARATION  OP  PARIS 64 

Changes  in  Society— Declaration  of  Paris — Position  of  Eng- 
land— Exemption  of  Private  Property  at  Sea  from  Capture 
— Views  of  Franklin — The  Position  of  the  United  States — 
The  Reasons  Against. 

CHAPTER  VII. 

THE   CIVIL   WAR   IN   THE   UNITED   STATES 73 

Instructions  for  the  Armies  in  the  Field — Confiscation,  Se- 
questration and  Captured  and  Abandoned  Property  Acts — 
Guerilla  Fighting — "Fort  Pillow  Massacre" — De  Facto  Gov- 
ernments. 

CHAPTER  VIII. 

THE  GENEVA  CONVENTION  OP   1864  AND  THE  DECLARATION  OF 
ST.    PETERSBURG     84 

First  Steps  Towards  the  Convention  of  1864 — Conference  of 
1863 — Formation  of  the  Red  Cross  Societies — Congress  of 
1864— The  Convention— Additional  Articles  of  1868— St. 
Petersburg  Declaration. 

CHAPTER  IX. 

THE   FRANCO-GERMAN    WAR 89 

Francs-tireurs — Occupation  by  Flying  Columns — Rights  of 
the  Occupant — Burnings — Hostages  on  Trains — Attempts 
of  Inhabitants  of  Occupied  Territory  to  Join  the  National 
Army — Contributions  and  Requisitions — Treatment  of  the 
Forests — Capture  of  Private  Property  at  Sea — Treatment  of 
Prisoners  of  War — Administration  of  Occupied  Territory. 


\ 


s, 


CHAPTER  X. 

ELE  LAW  OF  WAR. 

The  Institute  of  International  Law — Steps  Leading  up  to 


/THE  CODIFICATION  OF  THE  LAW  OF  WAR 100 


TABLE  OF  CONTENTS.  Xlll 

the  Brussels  Conference— Who  are  Entitled  to  the  Rights 
of  Regular  Combatants— Definition  of  Occupation— Contri- 
butions and  Requisitions— An  Able  Conference— Fate  of  the 
Declaration— Approval  of  the  Institute  of  International 
Law— The  Declaration  largely  the  Work  of  Military  Men— 
The  Manual  of  Oxford— Letter  of  Count  von  Moltke  Occa- 
sioned by  the  Manual— Other  Codifications. 

CHAPTER  XI. 

WARS  IN  THE  EAST  AND  WEST H? 

Chino- Japanese  War— High  Standards  of  Japanese  in  Gen- 
eral— Taking  of  Port  Arthur — Treatment  of  Chinese  Dead 
—The  Sick  and  Wounded— Exemption  of  Private  Property 
at  Sea  from  Capture— Graeco-Turkish  War  of  1897— Span- 
ish-American War — Regulations  relating  to  Maritime  Law 
—Exemption  of  Fishing  Vessels  from  Capture— Progressive- 
Tendency  of  International  Law — The  Assumption  of  the 
Cuban  Debt. 

CHAPTER  XII. 

THE  FIRST  PEACE  CONFERENCE 128 

Steps  Leading  up  to  it — Organization  of  the  Conference — 
Attempted  Limitation  of  the  Use  of  New  Arms— Expanding 
Bullets — Projectiles  Emitting  Asphyxiating  Gases — Con- 
vention Applying  the  Principles  of  the  Geneva  Convention 
to  Naval  Warfare — Convention  as  to  the  Laws  and  Customs 
of  War  on  Land — Work  of  the  Conference. 

CHAPTER  XIII. 

THE  WAR  IN   SOUTH   AFRICA 138 

Expanding  Bullets— Employment  of  Natives— Combatant 
Character — Confiscations  and  Alienations — Annexation  of 
the  Republics— Declaration  of  Martial  Law— "The  Neu- 
trality Oath"— Burning  of  the  Farms— Acts  of  Violence  in 
Occupied  Territory — Reconcentration — Proclamation  of  Au- 
gust 6,  1901,  Threatening  Banishment  for  Life — Troubles 
in  China — War  in  the  Philippines— Establishment  of  Zones 
of  Refuge. 


Xiv  TABLE   OF   CONTENTS. 

CHAPTER  XIV. 

THE    RUSSO-JAPANESE    WAR 156 

Opening  of  Hostilities — Treatment  of  Vessels  in  Hostile 
Ports  at  Outbreak  of  War — Treatment  of  Resident  Enemies 
— Threat  to  Treat  Wireless  Operators  as  Spies — Floating 
Mines — The  Russian  Volunteer  Fleet — Care  for  the  Sick  and 
Wounded — Regulations. 

CHAPTER  XV. 

THE  REVISION  OF  THE  GENEVA  CONVENTION  AND  THE  SECOND 
PEACE    CONFERENCE     175 

Imperfections  of  Convention  of  1864 — Steps  towards  Revi- 
sion— Work  of  the  Red  Cross  Societies  and  of  the  Institute 
of  International  Law — The  Geneva  Conference  of  1906 — 
Appreciation  of  the  Work  of  the  Conference — The  Second 
Peace  Conference — Convention  Respecting  the  Laws  and 
Customs  of  War  on  Land — Opening  of  Hostilities — Declara- 
tion Concerning  Discharge  of  Projectiles  from  Balloons — 
Bombardments  by  Naval  Forces — Submarine  Contact  Mines 
— Geneva  Convention  and  Naval  War — Conversion  of  Mer- 
chant Ships  into  Warships — Exemption  of  Private  Property 
at  Sea  from  Capture — Restrictions  on  Right  of  Capture  in 
Naval  War — Status  of  Enemy  Merchant  Ships — Formal  Ar- 
ticles— Appreciation  of  Work  of  Conference. 


Part  II. 
COMMENTARY. 


CHAPTER  I. 

COMMENCEMENT    OF    WAR 197 

Measures  of  Force  Falling  Short  of  War — Pacific  Blockades 
— Opening  of  Hostilities — Effect  of  the  Breaking  Out  of 
War — On  Treaties — Commercial  Intercourse — Private  Debts 
— Status  of  Enemy  Merchant  Ships  at  Outbreak  of  Hos- 
tilities— Contracts — Insurance — Standing  of  Aliens  in  Court 
— Licenses. 


TABLE  OF  CONTENTS.  XV 

CHAPTER  II. 

ENEMY    CHARACTER    AND    PROPERTY 212 

Liabilities  of  Neutral  Domiciled  in  Belligerent  Territory — 
Neutral  Railway  Material — Rules  as  to  Enemy  Character- 
Commercial  Domicil — Products  of  Soil — Enemy  Ships — 
Transfer  of  Property  in  transitu — Invalidity  of  Liens — 
Transfers  of  Enemy  Ships  during  "War — Effect  of  Conquest 
on  Enemy  Character — Be  facto  Possession — Personal 
Unions — Alliances — Exemptions  from  the  Right  of  Capture 
— When  Title  to  Prize  Vests — Confusion  of  Recapture  with 
Postliminium — Destruction   of   Captured   Vessels — Ransom. 

CHAPTER  III. 

THE  QUALIFICATIONS  OF  BELLIGERENTS 228  <^ 

The  Evil  and  the  Inspiration  of  Irregular  Fighting — Rus- 
sian Position  at  Brussels — Opposition  of  the  Smaller  Pow- 
ers to  Limiting  the  Class  of  Regular  Combatants  by  a  Hard 
and  Fast  Rule — H  I  not  Restrictive — Necessity  of  Fixed 
Emblem — Responsible  Head — Conditions  Entitling  to  Com- 
batant Treatment  in  Occupied  as  well  as  Unoccupied  Terri- 
tory— Unsuccessful  Uprisings  in  Occupied  Territory — Tem- 
porarily Successful  Uprisings — Privateering — Conversion  of 
Merchant  Ships. 

CHAPTER  IV. 

PRISONERS    OF    WAR 237        ^T— 

Not  Prisoners  of  Individuals — Humanity — Private  Property 
of — Not  Criminals — Democracy  Among  Prisoners — Entitled 
to  Earnings — Deduction  of  Cost  of  Maintenance — Escapes 
— Parole — Bureau  of  Information — Recognition  of  Relief 
Societies — Treatment  of  the  Dead — Effect  of  Peace — Ex- 
changes. 

CHAPTER  V. 

THE  SICK,  WOUNDED  AND  SHIPWRECKED 249 

Geneva  Convention  for  Land  "Warfare — The  Sick  and 
"Wounded — Sanitary  Formations  and  Establishments — Per- 
sonnel— Material — Convoys     of     Evacuations  —  Distinctive 


XVI  TABLE  OF   CONTENTS. 

Emblem — Application  and  Execution  of  the  Convention — 
Repression  of  Abuses  and  Refractions — Naval  Conventions 
— Hospital  Ships — Distinctive  Emblem — Sick  Wards — Per- 
sonnel— Disposition  of  Those  Rescued  by  Neutral  Hospital 
Ships — Prisoners  of  War — Internment  in  Neutral  Country 
— Application  and  Execution  of  the  Convention — Repres- 
sion of  Abuses  and  Infractions. 

CHAPTER  VI. 

MEANS  OF  OFFENSE  AND  DEFENSE 278 

The  St.  Petersburg  Declaration — Declaration  as  to  Asphyx- 
iating Gases — Declaration  as  to  Expanding  Bullets — Decla- 
ration as  to  Discharging  Projectiles  from  Balloons — Con- 
vention as  to  Automatic  Submarine  Contact  Mines— Poison 
■ — Assassination — Quarter — Declaration  of  No  Quarter — 
Arms  or  Projectiles  Causing  Unnecessary  Suffering — Im- 
proper Use  of  Flags,  Uniforms,  etc. — Devastation — Private 
Choses  in  Action — Prohibition  Against  Inhabitants  Being 
Forced  to  Take  Part  in  War  Operations  Against  Their  Own 
Country — Ruses — Bombardments  on  Land — Bombardments 
by  Naval  Forces — Pillage — Spies. 

CHAPTER  VII. 

NONHOSTILE  INTERCOURSE  OF  BELLIGERENTS 293 

Flags  of  Truce — Capitulations — Armistices. 

CHAPTER  VIII. 

MILITARY  OCCUPATION — RIGHTS  AND  DUTIES  AS  TO  PERSONS..  297 

Occupation  Must  be  Effective — Analogy  Between  Occupa- 
tion and  Blockade — Beginning  and  End  of  Occupation — 
Suspension  of  Territorial  Authority  of  Legitimate  Power — 
Continuance  of  Authority  over  Subjects — Duty  of  Inhabi- 
tants— Old  Laws  to  Continue  in  Force  Wherever  Possible — 
Establishment  of  Martial  Law — Offenses  Arising  from  Non- 
combatant  Character — Acts  not  in  Themselves  Violations 
of  the  Law  of  War,  but  Injurious  to  the  Occupant — Penal- 
ties of  Martial  Law — Reprisals — Duties  of  the  Old  Func- 
tionaries— Population  not  to  be  Required  to  Take  Oath  of 


TABLE  OF  CONTENTS.  XV11 

Allegiance  to  Occupant  or  to  give  Information  as  to  Army 
or  Means  of  Defense — Family  Life  to  be  Interfered  with  as 
Little  as  Possible. 

CHAPTER  IX. 

MILITARY  OCCUPATION — RIGHTS  AND  DUTIES  AS  TO  PROPERTY.  312 

Military  Occupant  has  right  to  National  Taxes — General 
Withdrawal  of  Tax  Officials — "War  Contributions — Efforts 
Made  to  Limit  Them — Advantages  of  Contributions — Col- 
lective Responsibility — Character  of  Receipts — Requisitions 
— Personal  Services — Sheltering  of  Troops — Importance  of 
Requisitions — Land  Transportation — Military  Execution — 
Movable  Public  Property — Debts  Due  the  Legitimate  Pow- 
er— Private  Property — Instrumentalities  of  Transportation 
and  Communication — Ships  not  Coming  Under  the  Rules 
of  Naval  Warfare — Submarine  Cables — Contracts  of  Ex- 
ploitation— Forests — Contracts  Entered  into  in  an  Adminis- 
trative Capacity — Property  of  Localities,  Churches,  etc. — 
Termination  of  War. 


APPENDICES. 


I. 

TREATMENT  OP  RUSSIAN  SUBJECTS  DURING  THE  RUSSO-JAPA- 
NESE   WAR    332 

II. 

CONVENTION   RESPECTING   THE  LAWS  AND  CUSTOMS   OF   WAR 

ON    LAND    345 

III. 

DECLARATION  PROHIBITING  THE  DISCHARGE  OF  PROJECTILES 

AND  EXPLOSIVES  FROM  BALLOONS , 350 


LIST   OF   AUTHORITIES.  XIX 


LIST  OF  AUTHORITIES. 


Adams,  Henry,  History  of  the  United  States,  New  York, 
1889-1891. 

Aegidi  und  Klauhold,  Frei  Sehiff  unter  Feindes-Flagge, 
Hamburg,  1866. 

Akiyama,  Masanosuke,  Traitement  des  Sujets  Russes,  Brus- 
sels, 1907. 

American  State  Papers,  Foreign  Relations. 

Annual  Register,  London,  1762. 

Annuaire  de  l'lnstitut  de  Droit  International,  Paris. 

Archives  Diplomatiques. 

Ariga,  Nagao,  La  Guerre  Sino-Japonaise,  Paris,  1896. 

Asakawa,  K.,  The  Russo-Japanese  Conflict,  Cambridge,  U.  S. 
A.,  1904. 

Azuni,  The  Maritime  Law  of  Europe  (translation),  New 
York,  1806. 

Beaumanoir,  Philippe  de,  Les  Coutumes  du  Beauvoisis,  edit- 
ed by  Le  Comte  Beugnot,  Paris,  1842. 

Bernard,  Mountague,  The  Growth  of  Laws  and  Usages  of 
War,  Oxford  Essays,  1856,  London. 

Blaine,  James  G.,  Twenty  Years  of  Congress,  Norwich,  Conn., 
1884-1893. 

Bluntschli,  Le  Droit  International  Codifie,  Paris,  1881. 

Bray,  Joseph,  Le  Droit  Penal  Militaire  Romain  et  l'Occu- 
pation  en  Temps  de  Guerre,  Paris,  1894. 

Brenet,  A.,  La  France  et  L'Allemagne  devant  le  Droit  In- 
ternational pendant  les  Operations  Militaires 
de  la  Guerre  de  1870-1871,  Paris,  1902. 

British  and  Foreign  State  Papers. 

Brunner,  Heinrich,  Grundzuge  der  deutschen  Rechtsge- 
schichte,  Leipzig,   1901. 

Burigny,  de,  Life  of  Grotius,  London,  1754. 

Bynkershoek,  Law  of  War  (translated  by  Du  Ponceau), 
Philadelphia,  1810. 

Calvo,  Charles,  Le  Droit  International.  Paris,  1896. 

Clarendon,  Edward,  Earl  of,  Life  of,  written  by  himself,  Ox- 
ford, 1827. 


XX  LIST   OF   AUTHORITIES. 

Columbia  Law  Review. 

Conference  International  de  la  Paix,  The  Hague,  1899. 

Corpus  Juris  Canonici,  Lyons,  1661. 

Davis,  George  B.,  The  Elements  of  International  Law,  New 

York  and  London,  1903. 
Despagnet,  Frantz,  La  Guerre  Sud-Africaine  au  Point  de 

Vue  du  Droit  International,  Paris,  1902. 
De  Wet,  Christian,  Three  Years'  War,  New  York,  1902. 
Digesta  Justiniani  Augusti,  Th.  Mommsen,  Berlin,  1870. 
Diodorus   Siculus,  Historical    Library     (translated    by    G. 

Booth),  London,  1700. 
Doyle,  Sir  A.  Conan,  The  War  in  South  Africa,  New  York, 

1902. 
Du  Cange,  Des  Guerres   Privees  et  du  Droit  de  Guerre  par 

Coutume,  in  the  Collection  des  Meilleurs  Dis- 
sertations— Relatifs   a  l'Histoire   de  France 

par  C.  Leber,  Paris,  1838. 
Glossarium  Mediae  et  Infimae  Latinitatis,  etc.,  Paris,  1840- 

1850. 
Dumont,  Corps  Universel  Diplomatique  du  Droit  des  Gens, 

Amsterdam,  1726-1731. 
Estrades,  Comte  d',  Lettres,  Memoires  et  Negotiations,  Lon- 
don, 1743. 
Feraud-Giraud,  Recours  a  Raison  des  Dommages  Causes  par 

la  Guerre. 
Ferrand,  Georges,  Des  Requisitions  Militaires,  Paris,  1892. 
Firth,  Charles,  Oliver  Cromwell,  New  York,  1900. 
Fortescue,  J.  W.,  A  History  of  the  British  Army,  London, 

1899. 
Franklin,  Works  of  Benjamin    (Bigelow),  New  York  and 

London,  1887-1888. 
Galiani,  Recht  der  Neutralist  (translation,  Casar),  Leipzig, 

1790. 
Gillot,  Louis,  La  Revision  de  la  Convention  de  Geneve,  Paris, 

1902. 
Gleig,  The  Campaigns  of  the  British  Army  at  Washington 

and  New  Orleans,  London,  1836. 
Grotius,  De  Jure  Belli  et  Pacis    (with  translation  by  W. 

Whewell),  Cambridge,  1853. 
Guelle,  Jules,  Precis  des  Lois  de  la  Guerre,  Paris,  1884. 
Gurlt,  Zur  Geschichte  der  Internationalen  und  Freiwilligen 

Krankenpflege  im  Kriege,  Leipzig,  1873. 


LIST   OF   AUTHORITIES.  XXI 

Hall,  A  Treatise  on  International  Law,  Fourth  Edition,  Ox- 
ford, 1895;  Fifth  Edition,  Oxford,  1904. 

Halleck,  International  Law,  revised  by  Sir  Sherston  Baker, 
London,  1893. 

Hansard's  Parliamentary  Debates. 

Harte,  Walter,  History  of  Gustavus  Adolphus,  London,  1807. 

Heffter,  Le  Droit  International  Public  de  l'Europe  (transla- 
tion), Berlin  and  Paris,  1866. 

Hershey,  Amos,  The  International  Law  and  Diplomacy  of 
the  Russo-Japanese  War,  New  York,  1906. 

Holland,  Studies  in  International  Law,  Oxford  1898. 

The  Laws  and  Customs  of  War  on  Land,  London, 
1901. 

Holls,  Frederick  W.,  The  Peace  Conference  at  The  Hague, 
New  York,  1900. 

Holtzendorff   et   Rivier,   Introduction   au   Droit    des   Gens, 
Hamburg,  1889. 

Imperatoris  Justinianii  Institutionum,  J.  B.  Moyle,  Oxford, 
1883. 

Institutes  of  Gaius  and  Rules  of  Ulpian,  Muirhead,  Edin- 
burg,  1880. 

James,  History  of  the  War  in  America,  London,  1818. 

Jomini,  Art  of  War  (translation),  New  York,  1854. 

Kennet,  White,  History  of  England,  London,  1706. 

Lameire,  Irenee,  Theorie  et  Pratique  de  la  Conquete  dans 
l'Ancien  Droit,  Paris,  1902. 
Les  Occupations  Militaires  en  Italie  pendant  les 

Guerres  de  Louis  XIV,  Paris,  1903. 
Les  Occupations  Militaires  en  Espagne  pendant 
les  Guerres  de  l'Ancien  Droit,  Paris,  1905. 

Laurent,  F.,  Histoire  de  l'Humanite,  Brussels,  1860-70. 

Lawrence,  T.  J.,  War  and  Neutrality  in  the  Far  East,  Lon- 
don, 1904. 

Lediard,  Thomas,  The  Naval  History  of  England,  London, 
1735. 

Livy,  Roman  History  (translated  by  William  Gordon),  Glas- 
gow, 1805. 

Lorriot,  A.,  De  la  Nature  de  l'Occupation  de  Guerre,  Paris, 
1903. 

Mably,  L'Abbe  de,  Le  Droit  Public  de  l'Europe,  Geneva, 
1776. 


XX11  LIST  OF  AUTHORITIES. 

Machiavelli,  Nicolo,  The  Prince  (translated  by  John  Mor- 
ley),  London,  1889. 

McPherson,  Edward,  History  of  the  Rebellion,  Washington, 
1876. 

Manuel  de  Droit  International   a  l'Usage  des  Officers  de 
l'Armee  de  Terre,  Paris,  1893. 

Martens,  G.  F.  de,  Summary  of  the  Law  of  Nations  (trans- 
lation), Philadelphia,  1795. 
Precis  du  Droit  des  Gens,  Paris,  1858. 

Martens,  F.,  Recueil  des  Traites  conclus  par  la  Russie. 

Mathes,  Capt.  J.  Harvey,  General  Forrest,  New  York,  1902. 

Maurice,  J.  F.,  Hostilities  without  Declaration  of  War,  Lon- 
don, 1883. 

Merighnac,  A.,  Les  Lois  et  Coutumes  de  la  Guerre  sur  Terre, 
Paris,  1903. 

Military  Correspondent  of  the  Times,  The  War  in  the  Far 
East,  New  York,  1905. 

Minutes  of  a  Court  of  Inquiry  upon  the  case  of  Major  John 
Andre,  Albany,  1865. 

Montesquieu,  Spirit  of  Laws    (translated  by  Thomas  Nu- 
gent), London,  1793. 

Moore,  John  Bassett,  History  and  Digest  of  the  Interna- 
tional Arbitrations  to  which  the  United 
States  has  been  a  Party,  Washington,  1898. 
International  Law  Situations  with  Solutions  and 
Notes — Naval  War  College,  Washington, 
1901. 
Digest  of  International  Law,  Washington,  1906. 

Morley,  John,  Oliver  Cromwell,  London,  1900. 

Moser,  J.  J.,  Versuch  des  neuesten  Europaischen  Volker- 
Rechts,  etc.,  Frankfort  on  Main,  1777-1780. 

Moynier,   Gustave,    Etude   sur   la   Convention   de    Geneve, 
Paris,  1870. 
La   Convention    de    Geneve   pendant   la   Guerre 
Franco-Allemande,   Geneve,   1873. 

Nys,  Ernest,  Le  Droit  de  la  Guerre  et  les  Precurseurs  de 
Grotius,  Brussels  and  Leipzig,  1882. 
Les   Origines   du   Droit   International,   Brussels, 

1894. 
Le  Droit  International,  Brussels  and  Paris,  1905 
and  1906. 


LIST  OF  AUTHORITIES.  XX111 

Oman,  Charles,  Art  of  War  in  the  Middle  Ages,  Lothian 

prize  essay,  Oxford,  1885. 
History  of  the  Art  of  War  in  the  Middle  Ages, 

New  York,   1898. 
Ortolan,  Theodore,  Regies  Internationales  et  Diplomatiques 

de  la  Mer,  Paris,  1864. 
Parliamentary  Papers. 
Phillimore,  Commentaries  upon  International  Law,  Second 

Edition,  London,  1873. 
Plutarch,  Morals,  edited  by  Wm.  W.  Goodwin,  Boston,  1871. 
Pont,  Ch.,  Les  Requisitions  Militaires  du  Temps  de  Guerre, 

Paris,  1905. 
Pothier,  Oeuvres  de  Pothier,  Paris,  1821-1824. 
Pradier-Fodere,    Droit    International    Public,    Paris,    1885- 

1906. 
Pufendorf,  Samuel,  De  Jure  Naturae  et  Gentium,  London, 

1672. 
Querry,  A.,  Droit  Musulman,  Recueil  de  Lois  Concernant  les 

Musulmans  Schyites,  1871-1872. 
Rebellion  Records. 

Report  of  the  United  States  Delegation  to  the  Geneva  Con- 
ference. 
Revue  de  Droit  International,  Brussels. 
Revue  Generale  de  Droit  International  Public,  Paris. 
Rivier,  Principes  du  Droit  des  Gens,  Paris,  1896. 
Roby,  John  Henry,  Roman  Private  Law,  Cambridge,  1902. 
Ropes,  John  C,  The  Army  under  Pope,  New  York,  1881. 
Rousseau,  J.  J.,  Du  Contract  Social,  Paris,  1896. 
Saxe,  Marshal,  Reveries  or  Memoirs  upon  the  Art  of  War 

(translation),  London,  1757. 
Schwab,  J.   C,  The  Confederate   States  of  America,  New 

York,  1901. 
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1902. 
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1906. 
From  Tokio  through  Manchuria  with  the  Japa- 
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Sheridan,   Gen.    P.   H.,   Personal   Memoirs   of,   New  York, 

1888. 
Sherman,  Gen.  Wm.  T.,  Memoirs  of,  by  himself,  New  York, 

1875. 


XXIV  LIST  OF  AUTHORITIES. 

Sohm,  Rudolph,  The  Institutes  (translated  by  Ledlie),  Ox- 
ford, 1901. 

Stark,  Francis  E.,  The  Abolition  of  Privateering  and  The 
Declaration  of  Paris,  New  York,  1897. 

Stubbs,  William,  Select  Charters  and  other  Illustrations  of 
English  Constitutional  History,  Oxford, 
1895. 

Smith,  F.  E.,  and  Sibley,  N.  W.,  International  Law  as  in- 
terpreted during  the  Eusso-Japanese  War, 
Boston,  1905. 

Takahashi,  Sakuye,  Cases  on  International  Law  during  the 
Chino-Japanese  War,  Cambridge,  1899. 
International  Law  as  applied  to  the  Eusso-Japa- 
nese War,  New  York,  1908. 

Taylor,  Hannis,  International  Public  Law,  Chicago,  1901. 

The  Second  International  Peace  Conference,  Washington, 
Government  Printing  Office,   1908. 

Twiss,  Sir  Travers,  Law  of  Nations  in  Time  of  War,  Oxford, 
1875. 

Valin,  Traite  des  Prises,  La  Eochelle,  1763. 

Vattel,  Law  of  Nations  (translation),  Northampton,  Mass., 
1805. 

Walker,  Thomas  Alfred,  History  of  the  Law  of  Nations, 
Cambridge,   1899. 

Ward,  Eobert  Plummer,  Enquiry  into  the  Foundation  and 
History  of  the  Law  of  Nations  in  Europe, 
etc.,  London,  1795. 
An  Enquiry  into  the  Manner  in  which  the  Differ- 
ent Wars  in  Europe  have  been  commenced 
during  the  last  two  centuries,  London,  1805. 

Westlake,  John,  Chapters  on  the  Principles  of  International 
Law,   Cambridge,   1894. 
International  Law,  Cambridge,  1904  and  1907. 

Wharton,  Digest  of  the  International  Law  of  the  United 
States,  Washington,  1886. 

Wheaton,  International  Law,  Dana's  Edition,  London  and 
Boston,  1866. 

Wicquefort,  Abraham  de,  Histoire  des  Provinces  Unies, 
Amsterdam,  1861. 

Wyeth,  John  Allen,  Life  of  General  Nathan  Forrest,  New 
York,  and  London,  1901. 

Zorn,  Albert,  Das  Kriegsrecht  zu  Lande,  Berlin,  1906. 


PART  I. 
HISTORY. 


THE  LAW  OF  WAR  BETWEEN 
BELLIGERENTS 


CHAPTER  I. 

INTRODUCTION. 

High-minded  men  in  every  age  have  longed  for  the  time 
when  wars  shall  be  no  more;  and  they  find  today  in  the 
Tribunal  of  The  Hague  the  beginnings  of  an  institution 
which  shall  realize  their  hopes  by  substituting  for  the 
appeal  to  force  the  appeal  to  justice  and  right.  But  ap- 
parently the  time  for  the  realization  of  such  hopes  has 
not  yet  come,  and  until  it  does  the  rules  according  to 
which  warfare  must  be  conducted  will  continue  to  be  of 
vital  concern.  These  rules  are  scarcely  less  certain  and 
are  probably  less  often  violated  than  the  rules  of  private 
law  which  are  enforced  by  the  courts;  but  the  passions 
of  war  often  cast  doubt  on  their  certainty  as  well  as  on 
their  efficacy,  so  that  even  more  than  in  the  case  of  private 
law  it  becomes  necessary  to  resort  to  fundamental  princi- 
ples ^to~S6e~wlrat  has  guided  the  making  of  rules  in  the 
past  and  is  likely  to  have  a  similar  influence  in  the  future. 

Much  of  the  progress  in  the  conduct  of  warfare  has  been 
due  to  the  improvement  in  military  science,  but  humanity 
has  also  played  its  part. — In  the  first  place,  it  cannot  be 
questioned  that  much  of  what  is  best  in  the  laws  of  war 
has  grown  up  independently  of  any  set  principles.  The 
respect  with  which  private  property  on  land  is  regarded 
today  is  largely  due  to  the  change  from  pillage  to  the  sys- 
tem of  contributions,  a  change  that  was  induced  mainly 
by  the  greater  efficiency  of  the  latter;  and  many  other  in- 
stances could  be  cited  of  ameliorations  which  have  been 
brought  about  by  the  selfish  interests  of  belligerents.    Civ- 

1 


PV 


2  INTRODUCTION. 

ilization  is  so  complex,  and  so  many  elements  have  gone 
into  its  making,  that  it  is  often  hard  to  say  just  what  in- 
fluence has  been  most  efficient;  but,  alongside  the  selfish 
motives,  we  know  that  the  great  commanders  who  have 
wrought  important  changes  in  the  conduct  of  warfare  have 
also  had  the  higher  motives  of  humanity,  and  it  is  these 
which  have  been  crystalized  and  applied  by  the  great  mar- 
tial jurists,  and  especially  the  greatest  of  them  all,  Grotius, 
so  as  to  be  recognized  as  fundamental  principles  of  theTaws- 
of  war. 

The  avoidance  of  useless  injury  a  fundamental  principle. 
— Of  principles  that  may  be  considered  fundamental,  the 
greatest  is,  that  comparatively  useless  injury  is  unlawful. 
Grotius  applied  this  principle  exhaustively  to  the  possible 
incidents  of  land  warfare,  and  backed  up  his  opinions  with 
such  an  array  of  writers  of  every  kind  and  age  that  the 
greatest  men  of  his  time,  men  like  Gustavus  Adolphus, 
became  his  ardent  admirers  and  devoted  followers.  He 
taught  with  new  force  that  a  belligerent  should  injure  his 
enemy  not  because  of  the  mere  injury  to  the  enemy,  but 
because  of  the  advantage  to  himself,  and  that  means  not 
leading  to  such  advantage  must  be  condemned.  To  state 
such  a  principle  is  to  obtain  its  acceptance,  and  it  has 
been  of  vital  force  in  making  the  laws  of  war  what  they 
are  today. 

The  proposition  that  war  should  be  a  relation  between 
governments. — It  is  the  principle  that  useless  injury  should 
be  avoided  and  that  a  war  of  revenge  is  absolutely  con- 
demnable  that  characterizes  the  difference  between  civil- 
ized and  uncivilized  warfare.  But  the  attempt  has  been 
made  to  introduce  another  principle — that  of  confining  wars 
to  governments  themselves.  Under  this  principle  the  state 
would  become  in  effect  a  corporation  with  limited  liability, 
for  whose  debts  the  general  property  of  its  citizens  would 
not  be  liable,  and  war  would  take  on  the  character  of  an 
athletic  contest  between  two  schools,  whose  members,  no 
matter  how  enthusiastic,  must  not  participate  except  as 
members  of  the  duly  authorized  teams. 

The  advantages  to  be  derived  therefrom. — The  carrying 
out  of  either  of  these  analogies  would  have  many  advan- 
tages. A  war  is  undoubtedly  the  concern  of  the  whole 
country,  and  it  is  desirable  that  the  country  as  a  whole 


INTRODUCTION.  6 

should  bear  its  burdens  instead  of  their  falling  even  tem- 
porarily upon  individuals.  A  government  is  able  to  dis- 
tribute the  burdens  over  the  entire  country,  and  to  shift 
them  if  necessary  to  future  generations,  and  thus  to  make 
comparatively  imperceptible  a  burden  that  would  be  crush- 
ing to  the  few.  The  assimilation  of  war  to  an  athletic  con- 
test has  also  other  considerations  in  its  favor.  One  of  the 
crying  evils  of  war  in  the  past  has  been  irregular  fighting. 
Military  men  and  publicists  are  at  one  in  decrying  its  in- 
efficiency and  the  lawlessness  and  recrimination  which  ac- 
company it. 

Its  application  during  the  17th  and  18th  centuries. — Prob- 
ably the  most  perfect  application  of  both  of  these  analogies 
was  in  the  period  preceding  the  French  Revolution,  when 
Rousseau  generalized  the  war  conduct  of  his  time  in  the 
famous  statement  that  has  served  as  the  text  ever  since  for 
those  who  wish  to  confine  wars  to  governments  themselves, 
a  statement  which  followed  closely  a  similar  generalization 
made  by  Vattel  four  years  previous. 

But  most  wars  are  now  contests  of  peoples  rather  than, 
of  princes. — But  since  Vattel  and  Rousseau  wrote,  the  pre- 
vailing ideas  of  government  have  vastly  changed.  Wars 
for  the  most  part  are  no  longer  the  contests  of  princes  in 
which  the  people  have  little  concern,  but  national  strug- 
gles to  which  the  peoples  themselves  are  parties  rather 
than  the  governments  which  represent  them.  It  is  the 
opposing  people  then  that  is  to  be  coerced  into  the  recog- 
nition of  the  claim  of  the  other  belligerent;  and  it  may 
well  be  doubted  whether  a  principle  that  would  altogether 
prevent  direct  pressure  from  being  brought  to  bear  on  the 
people  of  a  country  might  not  greatly  lengthen  wars,  and 
by  the  added  length  cause  far  more  suffering  than  it  would 
avoid.  Thus,  one  of  the  avowed  purposes  of  General 
Sherman's  March  to  the  Sea  was  to  bring  the  pressure 
of  war  home  to  the  people  of  Georgia.  Whatever  may  be 
the  opinion  as  to  incidents  of  that  march,  few  probably 
will  dispute  the  rightfulness  or  wisdom  of  its  general  pur- 
pose; and  yet  such  a  principle  as  that  under  consideration 
would  forbid  such  an  expedition  entirely,  unless  it  had 
distinct  military  purposes  as  well. 

The  continuance  of  the  practice  of  attacking  maritime 
commerce  would  indicate  that  governments  still  consider 


4  INTRODUCTION. 

the  seizure  of  private  property  an  effective  means  of  pres- 
sure on  governments. — General  Sheridan  claims  that  the 
loss  of  property  is  more  apt  to  bring  people  to  terms  than 
loss  of  life  on  the  battlefield;  and,  if  this  be  so,  it  is  often 
more  humane  to  occasion  some  sacrifice  of  property  and 
end  the  war,  than  to  spare  the  property  and  cause  the 
continued  loss  of  life,  the  expenditure  of  public  funds  and 
the  thousand  and  one  injuries  necessarily  inflicted  on 
private  property  by  the  operations  of  war,  no  matter  what 
theory  of  law  be  followed.  Such  a  theory  would  do  away 
with  commercial  blockades,  and  yet  such  blockades  have 
been  practiced  in  the  most  recent  wars  and  are  likely  to 
be  in  the  future.  When  it  comes  to  the  question  of  strik- 
ing at  commerce  on  the  high  seas,  this  reasoning  is  es- 
pecially applicable.  The  influence  of  the  great  commercial 
classes  over  modern  governments  is  so  powerful  that  ef- 
fective pressure  brought  to  bear  on  them  is  sure  to  be 
keenly  felt  by  those  holding  the  reins  of  government. 

A  rule  that  would  confine  resistance  to  organized  forces 
might  be  fatal  to  national  existence. — Even  stronger  rea- 
sons than  these  militate  against  the  adoption  of  the  view 
that  war  is  a  sort  of  athletic  contest,  in  which  none  but 
the  authorized  teams  must  play.  At  the  Brussels  Confer- 
ence in  1874,  the  attempt  was  made  to  convert  this  into  a 
hard  and  fast  rule  of  international  law,  but  it  was  op- 
posed by  the  able  representatives  of  the  smaller  powers 
and  aroused  in  them  the  utmost  indignation,  notwithstand- 
ing the  fact  that  the  Conference  had  already  stretched  the 
rule  almost  to  breaking  by  the  liberal  concessions  to  its 
opponents.  It  was  admitted  that  a  belligerent  might  often 
feel  justified  in  using  extreme  measures,  even  where  a  ris- 
ing of  the  population  in  occupied  territory  was  prompted 
by  the  most  patriotic  motives,  but  it  was  thought  better 
to  leave  such  incidents  to  the  unwritten  law  of  nations 
than  by  a  hard  and  fast  rule  to  turn  over  to  military  jus- 
tice those  who  had  been  willing  to  sacrifice  their  all  for 
their  country.  As  it  would  have  been  a  mistake  to  intro- 
duce any  such  inflexible  rule  into  an  international  agree- 
ment, so  it  would  be  a  mistake  to  introduce  it  into  the 
unwritten  law  of  nations.  At  the  international  conferences 
the  prevailing  opinion  has  seemed  to  be  that  the  reimburse- 
ment  of   the   individual   is   largely   a   matter   of  national 


INTRODUCTION.  5 

rather  than  international  concern,  desirable,  no  doubt,  but 
subject  to  considerations  of  expediency  and  not  a  matter 
of  absolute  right.  Likewise  it  would  seem  better  to  run 
the  risk  of  an  abuse  of  discretion  on  the  part  of  a  Gov- 
ernment in  entering  on  irregular  warfare  than  by  an  arti- 
ficial rule  to  prejudge  all  cases  that  may  arise. 

The  value  in  Rousseau's  doctrine. — Insofar  as  there  is 
value  in  the  theory  with  which  the  name  of  Rousseau  is 
associated,  it  is  summed  up  by  Westlake  as  follows:  "The 
relation  of  enemies  ought  to  be  held  to  exist  (1)  between 
twro  states  at  war  with  one  another;  (2)  between  each  of 
those  states  and  those  subjects  of  the  other  whom  for  the 
purpose  of  the  war  it  may  be  necessary  to  affect  by  acts 
of  force,  and  so  far  only  as  it  is  necessary  so  to  affect 
them;  but  not  (3)  between  individuals."1 

German  doctrine  of  necessity. — Some  of  the  obvious  dan- 
gers of  the  theory  that  war  should  be  confined  to  govern- 
ments themselves  are  avoided,  especially  by  the  German 
adherents  of  that  theory,  by  their  doctrine  of  necessity. 
It  is  a  doctrine  like  that  of  self-preservation,  of  which 
Hall  says:  "It  would  be  difficult  to  say  that  any  act  not 
inconsistent  with  the  nature  of  a  moral  being  is  forbidden, 
so  soon  as  it  can  be  proved  that  by  it,  and  it  only,  self- 
preservation  can  be  secured.  But  the  right  in  this  form 
is  rather  a  governing  condition,  subject  to  which  all  rights 
and  duties  exist,  than  a  source  of  specific  rules,  and  prop- 
erly perhaps  it  cannot  operate  in  this  latter  capacity  at 
all."2  The  German  writers,  however,  go  further  than  this 
with  the  doctrine  of  necessity,  and  apply  it,  not  only  where 
self-preservation  is  at  stake,  but  in  all  cases  of  extreme 
need  when  the  object  of  the  war  cannot  be  obtained  other- 
wise.'' In  other  words  the  observance  of  the  laws  of  war 
is  subject  to  the  condition  that  it  is  consistent  with  the 
aTtainment  of  the  object  of  the  war.  If  it  is  not  it  is  the 
less  important  and  must  give  way.  Confined  to  certain 
extraordinary  cases  this  doctrine  is  not  objectionable,  but 
if  given  a  liberal  interpretation  it  would  soon  usurp  the 
place  of  the  laws  of  war  altogether.  Would  it  not  be  bet- 
ter if  such  an  extraordinary  occasion  should  arise  to  vio- 

i  II  International  Law,  38. 

2  Hall,  5th  Ed.,  p.  269. 

3  Westlake,   Principles,   p.   239. 


6  INTRODUCTION. 

late  the  law  and  plead  justification,  than  by  announcing 
such  a  principle  in  advance,  sanction  it  almost  as  law  it- 
self? 

General  influences  which  have  improved  war  practice. — 
The  foregoing  are  the  most  important  of  the  general  prin- 
ciples that  have  been  urged  as  guides  for  the  conduct  of 
belligerents  towards  each  other.  But  in  the  last  analysis 
the  efficacy  of  all  law  depends  on  its  conformity  to  the 
public  conscience  and  especially  is  this  true  as  to  the  laws 
of  war  between  belligerents.  It  is  inconceivable  that  we 
should  use  poison  even  though  it  might  be  effective,  and 
the  increased  care  for  prisoners  and  especially  the  sick 
and  wounded  but  reflects  the  philanthropic  spirit  of  the 
age.  Perhaps  the  last  of  all  to  feel  this  quickening  of  the 
public  conscience  are  the  courts.  They  necessarily  follow 
to  a  very  great  extent  the  precedents  of  a  past  age  and 
for  these  reasons  it  is  desirable  that  many  of  the  incidents 
of  war,  such  as  commercial  intercourse  with  the  enemy, 
should  be  more  fully  placed  in  the  hands  of  the  political 
authorities,  who  are  more  responsive  to  public  opinion. 
Finally  the  ideals  of  chivalry,  which  have  always  been 
associated  with  military  life,  and  the  spirit  of  fair  play 
engendered  by  personal  contact  with  the  enemy,  have  done 
much  to  relieve  war  of  its  harshness.  During  our  own 
civil  war  the  soldiers  in  the  field  were  much  less  vindictive 
than  many  of  the  civil  authorities  at  Washington. 


BEFORE  GROT1US. 


CHAPTER  II. 

BEFORE    GROTIUS. 

The  confusion  in  the  use  of  the  terms  "law"  and  "right." 
— In  a  letter  quoted  later,1  Count  von  Moltke  denies  rather 
warmly  the  applicability  of  the  term  law  to  international 
agreements,  as  there  is  no  authority  to  watch  over  and 
execute  them.  He  is  one  of  a  great  number  who  have  con- 
sidered the  essential  quality  of  law  to  be  that  of  command, 
so  that  there  can  be  no  law  where  there  is  no  superior. 
He  represents  the  opposite  extreme  from  those  who  would 
extend  the  scope  of  international  law  to  include  natural 
law,  and  while  this  view  as  to  what  law  is,  has  been  regarded 
by  Sir  Henry  Maine  and  others  as  negligible,  since  Count 
von  Moltke  would  have  undoubtedly  recognized  the  ob- 
ligation of  well-settled  usages  of  war  by  whatever  name 
called,  still  it  unquestionably  produces  confusion  in  the 
use  of  the  term  law  and  hinders  that  general  consensus 
of  opinion  which  is  so  desirable,  especially  in  the  relations 
between  belligerents. 

Renders  the  ascertainment  of  war  practice  of  past  ages 
difficult. — This  confusion  in  the  use  of  terms  is  not  peculiar 
to  our  own  time,  and  it  renders  the  ascertainment  of  the 
war  practice  of  past  ages  peculiarly  difficult.  The  most 
contradictory  statements  are  made  as  to  the  existence  or 
nature  of  a  law  of  war,  when  the  whole  difficulty  is  apt 
to  be  a  matter  of  terms.  It  is  probably  true,  as  Montes- 
quieu has  said,  that  "all  countries  have  a  law  of  nations, 
not  excepting  the  Iroquois  themselves,  though  they  devour 
their  prisoners."2  It  is  important  to  bear  this  in  mind, 
for  the  statement  is  frequently  made  that  till  recently  war 
broke  all  legal  relations  and  that  an  enemy  had  no  rights, 
a  statement  that  is  true  only  in  some  of  the  narrower 
senses  in  which  the  terms  "law"  and  "right"  have  been 
used. 

i  Infra.,  p.  114. 

2  Montesquieu,   Spirit  of   Laws,    Bk.    1,   Chap.   III. 


8  BEFORE  GROTIUS. 

The  Aryans  early  showed  high  standards  of  humanity 
in  war. — No  one  who  recalls  the  wars  of  extermination 
waged  by  the  Jews,  or  the  deeds  of  savagery  that  disfig- 
ure the  pages  of  ancient  and  oriental  history,  will  care 
to  have  them  detailed  here.  Often  they  involved  no  suf- 
fering to  the  living,  but  consisted  in  savage  exultation 
over  the  dead;  but  to  us  they  must  be  equally  revolting. 
On  the  other  hand,  it  must  be  a  matter  of  pride  to  us  that, 
among  the  first  glimpses  we  have  of  the  Aryan  peoples, 
we  find  incidents  of  humanity  in  time  of  war  which  fore- 
shadow the  high  standards  of  war  practice  in  vogue  today 
and  form  a  pleasing  contrast  to  the  general  current  of 
contemporaneous  history.  Diodorus  Siculus  says  that,  al- 
though among  the  ancient  Hindus  "the  armies  on  both 
sides  slaughter  one  another,  yet  they  never  hurt  the  hus- 
bandman, as  one  who  is  a  servant  for  the  common  good 
and  advantage  of  them  all;  neither  do  they  burn  their 
enemies'  country,  or  cut  down  their  trees  or  plants."3 
Instances  of  a  like  humanity  are  found  among  the  Persians ; 
and,  while  we  find  in  Homer  incidents  of  savagery  and 
revenge,  these  are  offset  by  the  many  instances  of  Greek 
and  Roman  humanity  which  are  recited  in  the  pages  of 
Grotius ;  instances  which  caused  him  to  turn  to  classic  lit- 
erature with  relief  from  the  sickening  events  of  the  Thirty 
Years'  War. 

Greek  and  Roman  war  practice. — In  some  respects,  war 
was  more  severe  even  in  the  best  periods  of  Greece  and 
Rome  than  it  is  today.  Prisoners  of  war  were  made  slaves, 
the  inhabitants  of  towns  taken  by  assault  could  expect 
little  mercy,  and  acts  of  great  severity  intended  to  inspire 
terror  were  frequent.  On  the  other  hand,  declarations  of 
war  were  very  elaborate,  the  release  of  prisoners  on  parole 
and  ransom  was  not  unknown,4  acts  of  violence  against 
women  and  children  were  denounced  and  perfidy  was  con- 
demned.5 

The  few  precepts  of  the  Roman  Law  relating  to  war 
made  much  of  by  the  founders  of  the  Law  of  Nations. — The 

s  The  Historical  Library  of  Diodorus  the  Sicilian,  Bk.  II,  Chap.  Ill, 
p.  73    (Trans.  Booth). 

*  Plutarch,  Greek  questions,  Question  17    (Trans.  Booth). 

s  Grotius,  Bk.  Ill,  Chap.  XI,  9-15  and  Chap.  IV,  18,  quoting  numer- 
ous Greek  and  Latin  authors. 


ROMAN  LAW.  )) 

Digest  of  Justinian,  which  is  the  great  source  of  our 
knowledge  of  the  Roman  Law,  and  which  embodies  most 
of  what  was  best  of  the  great  Roman  jurists,  contains  little 
that  pertains  to  the  subjects  covered  by  The  Hague  Reg- 
ulations, and,  except  as  to  captives,  that  little  consists  of 
incidental  remarks;  but,  like  everything  else  in  the  Digest, 
that  little  was  so  worked  over  and  elaborated  by  the  jurists 
of  the  Middle  Ages  and  their  successors  that  it  occupies 
a  prominent  place  among  the  sources  of  the  modern  law 
of  war. 

The  law  of  capture. — Enemy  property  was  placed  in  the 
same  class  with  res  nullius,  things  belonging  to  no  one, 
such  as  animals  in  a  state  of  nature,  from  the  fact  that 
in  both  cases  title  was  not  derived  from  someone  else  but 
was  acquired  by  mere  appropriation.6  Conquered  land 
became  the  property  of  the  state;7  but  it  was  customary 
to  leave  the  old  proprietors  in  possession  of  part  of  what 
they  had  owned  or  even  of  all  of  it,  subject  to  a  perma- 
nent land  tax.8  Other  property,  unless  captured  under 
such  circumstances  as  to  make  it  the  individual  property 
of  the  captor,  as  in  an  assault,9  became  part  of  the  gen- 
eral spoil,10  which,  or  the  proceeds  of  which,  was  com- 
monly distributed  among  the  various  ranks  of  the  army 
after  a  deduction  had  been  made  for  the  public  treasury 
and  at  times  also  for  the  gods.11  Prisoners  of  war  became 
slaves,  but  only  on  being  led  into  the  camp  of  the  enemy. 
Until  then  they  retained  their  civil  rights.12  This  prin- 
ciple of  intra  praesidia,  that  firm  possession  was  necessary 
to  give  title,  occupies  a  very  modest  place  in  the  Digest, 
but  it  was  applied  generally  to  things  as  well  as  to  persons 
by  Grotius  and  the  other  early  writers  on  the  Law  of  Na- 
tions; and  it  played  a  most  important  part  in  limiting  the 
rights  of  Conquest  to  places  which  had  been  firmly  occu- 
pied as  well  as  in  postponing  the  vesting  of  title  to  cap- 

eGaius,  IT,  66-68;  Just.,  II,  1,  17. 
7  D,  XLIX,  15,  20. 

s  Grotius,    III,    6,    11;    Bluntschli.    Revue    de    Droit    International, 
IX,  519. 

Livy,  IT,  41,  VIII,  1. 
o  Grotius,  III,  6,  18. 
io  D.  XLIX,   15,  20. 
ii  Grotius,  III,  6,  16,  20. 
12  D,  XLIX,  15,  5,  1. 


10  BEFORE  GROTIUS. 

tured  ships  till  they  were  brought  to  a  place  of  safety,  such 
as  a  port  of  the  captor  or  of  an  ally,  or  the  vicinity  of  a 
fleet. 

Prisoners  did  not  become  slaves  in  civil  wars. — Another 
important  modification  of  the  doctrine  that  prisoners  of 
war  became  slaves  was  that  this  took  place  only  where 
the  war  was  solemnly  declared  ;13  and,  as  this  was  impos- 
sible in  the  case  of  internal  war,  the  opposing  forces  in 
such  a  war  did  not  become  formal  enemies  nor  did  prisoners 
of  war  become  slaves.14  Grotius  attributes  much  of  the 
savagery  of  the  civil  wars  to  this  cause,  on  the  supposition 
that  men  were  more  inclined  to  kill  where  they  had  not 
the  right  to  enslave.15  In  the  Middle  Ages,  when  many 
were  inclined  to  regard  those  recognizing  the  authority  of 
the  Roman  Church  as  the  successors  of  the  Roman  people, 
the  modification  in  question  had  an  important  influence, 
as  it  gave  a  legal  basis  to  the  doctrine  that  the  wars  of 
"Western  Europe  were  civil  wars  and  that  accordingly  no 
right  of  enslaving  prisoners  of  Avar  could  arise  from  them.16 

The  effect  of  capture  on  a  Roman  citizen  and  of  his  re- 
turn to  his  own  country. — The  enslavement  of  a  prisoner 
of  war  meant  the  loss  of  his  citizenship,  of  his  position  in 
his  family,  and  of  his  property  rights ;  but  this  was  sub- 
ject to  the  important  qualification  that  his  rights  revested, 
and  that  his  old  position  in  his  family  and  in  the  state 
revived,  on  his  escape  from  the  enemy  and  return  to  his 
own  country.  In  effect  his  various  rights  were  suspended 
for  the  period  of  his  captivity.17  A  will  made  during  that 
period  was  invalid,  and  his  children  were  released  for  the 
time  being  from  obedience  to  him.  If  he  died  in  captivity, 
however,  it  was  provided  by  a  Cornelian  law  that  he  should 
be  considered  to  have  died  a  Roman  citizen.  The  jurists 
interpreted  this  to  mean  that  he  was  considered  to  have 
died  at  the  moment  of  capture,  so  that  those  who  would 
have  been  entitled  to  succeed  to  his  estate,  if  he  had  died 
at  that  time,  became  entitled  to  it.18 

Law    of    reverter    or    postliminium. — This    law    of  re- 

13  D,  XLIX,   15,  24. 

i*  D,  XL1X,  15,  21. 

is  Grotius,  III,  7,  5,  3. 

16  Nys,  Origines,  etc.,  p.  237. 

it  Gcaius,  I,  129 ;  Ulpian,  X,  4. 

isRoby,  Roman  Private  Law,  I,  210;  D,  XLIX,  15,  22. 


THE  GERMANIC  MIGRATIONS.  11 

verter,  which  changed  the  effect  of  capture  from  an  ab- 
solute loss  of  rights  to  the  mere  suspension  of  them,  was 
called  the  law  of  postliminium.  It  applied  also  to  land, 
slaves,  ships  of  war  and  horses;19  but  as  these  are  spe- 
cifically mentioned  it  is  probable  that  the  law  did  not 
apply  to  property  in  general,  but  that  such  property  be- 
came part  of  the  general  booty  on  recapture.  It  certainly 
did  not  apply  to  arms,  which  it  was  considered  a  dis- 
grace to  loose.20  It  is  probable,  then,  that  most  kinds  of 
movable  property  when  recaptured,  did  not  vest  in  the 
old  owners;  and  by  the  time  of  Grotius,  at  least,  this  had 
ripened  into  a  well-recognized  rule  of  international  prac- 
tice, so  that  the  law  of  postliminium  was  considered  by 
him  and  most  of  his  successors  to  apply  to  land  and  ter- 
ritory, but  with  some  exceptions  not  to  movables.  This 
law  of  war  was  elaborated  in  greater  detail  than  any  other 
by  the  Roman  jurists,  so  that  it  came  to  occupy  an  im- 
portant place  in  early  works  on  the  Law  of  Nations,  as 
it  has  continued  to  do  well  into  the  present  century.  Its 
chief  function  in  International  Law  has  been  in  keeping 
clear  the  principle  that  territory  seized  by  an  enemy  does 
not  become  his  in  equal  right  with  his  old  territory  till 
the  conclusion  of  the  war.  The  same  result  is  much  more 
simply  worked  out  in  our  modern  doctrine  of  Military 
Occupation;  but  to  a  great  extent,  the  results  of  the  old 
doctrine  of  defeasible  title  were  the  same  as  those  of  this 
later  doctrine  of  mere  possession. 

The  Germanic  migrations. — There  is  no  sharp  break  be- 
tween the  character  of  the  warfare  waged  by  the  armies 
of  the  later  Roman  Empire  and  of  that  waged  by  the 
Germanic  tribes  which  overran  it.  From  the  beginning  of 
the  fifth  century  German  mercenaries  came  to  be  a  pre- 
ponderating element  in  the  imperial  armies,21  and,  as  each 
corps  was  encouraged  to  keep  its  own  national  arms  and 
equipment,22  there  was  probably  more  in  common  between 
the  warfare  waged  by  the  German  tribes  in  the  great  mi- 
grations and  the  warfare  of  the  later  Empire  than  between 
the  latter  and  the  earlier  Roman  practice.     From  the  mo- 

19  D,  XLIX,  15,  2-3 ;  Roby,  II,  265. 

20  Ibid. 

21  Oman,  the  Art  of  War,  p.  16. 

22  Oman,  p.  43. 


12  BEFORE  GROTIUS. 

ment  that  these  mercenaries  came  to  be  employed,  their 
imperfect  discipline  must  have  added  greatly  to  the  bur- 
dens of  war;  and  when  the  migrations  came,  the  presence 
of  women  and  children  with  the  armies  must  have  aug- 
mented even  this  increased  burden  manyfold.  Despite 
this,  however,  the  execration  which  the  supposed  conduct 
of  the  Vandals  called  forth,  and  the  detestation  which 
caused  the  Hun,  Attila,  to  be  called  "The  Scourge  of  God" 
show  that  there  were  well  recognized  standards  among 
the  Germans  which,  compared  with  the  reputed  standard 
of  the  particular  tribe,  the  Vandals,  and  with  that  of  the 
Huns,  were  comparatively  high. 

The  systematic  war  code  of  the  Saracens.— The  Ger- 
manic invasion  was  followed  by  that  of  the  Sara- 
cens. Their  law  book  was  the  Koran,  but  it  was  neces- 
sarily incomplete  and  was  supplemented  by  the  decisions 
of  Mohammed  and  his  successors.  To  meet  the  needs  of 
the  different  peoples  whom  the  Saracens  conquered,  this 
body  of  law  was  codified  and  the  result  bears  tribute  to 
the  brilliant  line  of  jurists  who  accomplished  it.23  That 
portion  dealing  with  the  law  of  war  is  of  considerable 
magnitude.  It  is  the  first  example  we  have  of  a  systematic 
war  code. 

The  waging  of  war  a  religious  duty. — Once  a  year  holy 
war  was  to  be  made  on  the  unorthodox,  on  unbelievers  and 
on  tributaries  who  had  failed  to  live  up  to  their  obliga- 
tions.24 It  was  possible  for  tributaries  to  retain  their  re- 
ligion and  even  the  administration  of  their  country,  but 
it  was  only  Jews,  Christians  and  Ghebers  who,  as  tribu- 
taries, could  have  these  privileges.  To  other  unbelievers 
no  middle  course  was  offered  between  Islamism  and  the 
sword.25 

Precepts  of  kindness  and  chivalry. — Precepts  of  kindness 
and  chivalry  were  not  lacking.  There  were  injunctions 
against  making  use  of  incendiary  projectiles,  and  also 
against  cutting  trees  belonging  to  the  enemy,  intercepting 
his  water  supply  or  poisoning  wells  and  water  courses, 
while  the  killing  of  women  and  children  or  the  insane,  and 
the  mutilation  of  prisoners  without  orders,  was  absolutely 

23  A.  Querry  Droit  Musulman,  I,  Preface. 
a  Ibid.,  p.  324. 
25  Ibid.,  p.  342. 


SARACENIC  WAR  CODE.  13 

forbidden.26  Where  an  offer  of  individual  combat  had  been 
made  by  an  enemy,  it  was  unlawful  to  render  the  combatant 
assistance.  The  faithful  observance  of  capitulations  was 
obligatory. 

Treatment  of  prisoners  of  war. — Women,  and  minors  of 
both  sexes,  became  the  immediate  property  of  the  captors. 
The  disposition  of  adult  male  prisoners  was  reserved  to  the 
commander.  They  could  be  sent  back,  released  on  ransom, 
exchanged,  or  reduced  to  slavery.27  The  giving  of  food  and 
drink  to  prisoners  was  compulsory.  It  was  recommended 
that  they  should  not  be  tortured,  nor  were  their  heads  to 
be  carried  from  the  field  of  battle.28 

Treatment  of  enemy  property. — Cultivated  land  which 
was  seized  became  the  property  of  the  whole  Mussulman 
community.29  Booty  could  not  be  appropriated  except  for 
nourishment,  till  after  a  fifth  had  been  taken  from  it.30 
This  fifth  was  devoted  to  religious  purposes,  the  care  of 
orphans,  of  the  needy  and  of  strangers.31 

Comparatively  mild  treatment  of  unorthodox  Mussul- 
mans.— Against  unorthodox  Mussulmans,  war  gave  fewer 
rights  than  against  unbelievers.  The  object  of  war  against 
them  was  their  dispersion,  and  when  this  could  be  accom- 
plished without  the  more  serious  measures  it  was  wrong 
to  resort  to  them.  Prisoners  of  war  were  not  enslaved  and 
property  was  confiscated  to  only  a  limited  extent.32 

Actual  practice  among  Mohammedans  not  uniform. — 
These  rules  left  much  to  be  desired.  Almost  unlimited 
discretion  as  to  the  treatment  of  prisoners  of  war  was  left 
in  the  hands  of  the  commander,  so  that  the  character  of 
the  war  was  largely  in  his  hands,  while  the  immediate 
enslavement  of  women  and  children  allowed  the  worst 
passions  of  the  Mohammedans  to  find  vent.  Still,  there 
were  some  evidences  of  a  humane  disposition,  and  the 
Saracens,  under  whom  the  first  great  conquests  of  Islamism 
were  made,  seem  to  have  exercised  their  power  with  the 
greatest  consideration.     The  Turks,  however,  have  always 


26  IUd., 

pp.  326,  332 

27  Ibid., 

p.  332. 

28  ibid., 

p.   333. 

29  Ibid., 

p.  337. 

30  Ibid., 

p.  335. 

si  Ibid., 

p.  17S. 

32  Ibid.,   pp.   352-3:53. 


V 


14  BEFORE    GROTIUS. 

betrayed  their  Turanian  origin,  and  the  West  African 
dynasties  which  followed  that  of  the  Saracens  in  Spain 
fell  short  of  the  high  standard  set  by  their  predecessors.33 

The  Eastern  Roman  Empire. — The  Saracens  were  mar- 
vellously successful,  but  they  failed  to  accomplish  the  over- 
throw of  the  Eastern  Roman  Empire.  That  was  left  for 
the  Turk  in  1453  In  the  meantime  the  institutions  there 
had  retained  much  of  the  form  impressed  on  them  in  the 
days  of  the  early  emperors.  The  art  of  war  and  military 
discipline  and  organization  had  remained  while  elsewhere 
they  had  been  forgotten.  In  the  Tactica  of  Leo  the  Wise, 
written  about  the  year  900,  there  is  much  good  counsel 
"to  the  effect  that  no  plighted  treaty  or  armistice  must 
be  broken,  no  ambassador  or  parlementaire  harmed,  no 
female  captive  mishandled,  no  slaughter  of  noncombatants 
allowed,  no  cruel  or  ignominious  terms  imposed  on  a  brave 
enemy."34  This  is  somewhat  marred,  however,  by  the  ap- 
proval given  to  the  use  of  bribes,  to  the  obtaining  of  in- 
formation through  flags  of  truce  and  to  other  measures  in 
which  the  East  Roman  took  an  unnatural  delight  as  evi- 
dence of  his  cleverness.35 

The  lawlessness  of  the  Middle  Ages. — Far  different  from 
the  state  of  affairs  in  the  East  Roman  Empire  and  among 
the  Saracens  was  that  in  the  West.  The  great  Carolingians 
had  temporarily  checked  the  tendency  towards  anarchy 
that  had  set  in  with  the  Germanic  migrations,  but  on  the 
death  of  Charlemagne  there  was  no  one  to  take  his  place, 
and  the  tendency  towards  anarchy  was  allowed  to  run  its 
course.  The  weakness  of  political  power  necessitated  the 
castle  for  protection  from  neighboring  lords  as  well  as 
from  the  inroads  of  Norseman  and  Saracen,  and  once  built, 
the  castles  served  to  perpetuate  the  condition  of  lawless- 
ness which  had  been  the  cause  of  their  origin.  Kings  were 
able  to  do  little  against  them  and  wars  came  to  be  petty 
strifes  and  knight  errant  expeditions.  In  this  dark  period 
of  the  Middle  Ages  the  Church  of  Rome  was  the  one  great 
institution  standing  for  law  and  order. 

Private  Wars. — A  proof  of  the  lawlessness  of  the  times 
is  the  existence  of  private  wars,  which  abounded  every- 

33  Walker,  History  of  the  Law  of  Nations,  Vol.  I,  pp.  125,  129. 

34  Oman,  The  Art  of  War,  p.  201. 

35  Ibid.,  pp.  200,  201. 


PRIVATE  WARFARE.  15 

where  but  in  England.  They  were  probably  in  part  sur- 
vivals of  the  old  German  family  feuds  and  m  paTt~out- 
growths  of  the  times.  In  Franee,  especially,  they  came  to 
be  waged  with— groat -precision.  They  could  be  resorted  to 
only  for  open  and  notorious  offenses  such  as  homicide,  may- 
hem and  battery,30  and  were  commenced  by  the  breaking 
out  of  an  open  quarrel  or  by  words  of  menace  or  defiance.37 
Relatives  of  the  author  of  the  war  of  the  degree  in  which 
marriage  was  forbidden  by  the  church,  were  bound  to  sup- 
port him  under  pain  of  losing  their  rights  of  succession.38 
Vassals  were  held  to  join  their  chief,  but  they  could  not  be 
attacked  except  while  in  actual  service.  When  they  re- 
turned from  the  war,  they  were  not  to  be  attacked  for 
simply  having  performed  their  duty.39  The  right  to  wage 
private  war  pertained  only  to  gentlemen.40  The  communes 
obtained  it  by  special  concession  from  the  King.41  The 
war  terminated  by  a  peace,  by  an  appeal  of  one  party  to 
the  suzerain,  by  gage  of  battle  or  by  the  satisfaction  of 
the  offense.  When  one  of  the  parties  desired  to  avoid  the 
war  he  called  on  the  suzerain  to  summon  his  adversary  into 
court  and  oblige  him  to  give  assurance  not  to  injure  the 
appellant  further  in  his  person  or  goods,  but  to  bring  the 
controversy  into  the  suzerain's  court  and  abide  by  his  de- 
cision.42 This  the  suzerain  was  obliged  to  do,  although  he 
was  bound  to  exact  an  assurance  from  the  one  making  the 
appeal  as  well  as  from  the  one  appealed  against.  An  as- 
surance could  be  required  only  on  an  appeal  of  this  kind. 
It  could  not  be  imposed  on  the  initiative  of  the  seigneur.43 
Early  checks  by  the  temporal  powers  on  private  warfare. 
— One  of  the  early  checks  imposed  on  this  practice  by  the 
kings  of  France  was  the  requirement  of  a  delay  of  forty 
days,  after  the  breaking  out  of  private  war,  before  the  rela- 
tives of  the  offending  party  could  be  attacked  unless  they 

36  Du  Cange,  Des  Guerres  Privees,  etc.,  p.  428;  Philippe  de  Beau- 
manoir,  Les  Coutumes  du  Beauvoisis,  Vol.  II,  p.  354,  p.  371.  Most 
of  the  war  practice  of  the  Middle  Ages  is  derived  from  the  scholarly 
researches  of  Prof.  Nys. 

37  Du  Cange,  p.  430 ;   Beaumanoir,  p.  354. 

38  Du  Cange,  p.  433 ;  Beaumanoir,  p.  362. 

39  Du  Cange,  p.  441 ;   Beaumanoir,  p.  3G3. 

40  Du  Cange,  p.  426 ;  Beaumanoir.  p.  355. 

41  Nys,  Les  Origines  du  Droit  International,  p.  84. 

42  Du  Cange,  p.  446. 

43  Du  Cange,  p.  446,  et  seq.;  Beaumanoir,  pp.  360,  364,  et  seq. 


iJ 


16  BEFORE    GROTIDS. 

had  been  present  at  the  opening  of  the  struggle.44  A  cen- 
tury or  so  before  this,  however,  in  1128,  at  the  Cortes  of 
Najera,  Alphonse  VII  of  Castile  had  gone  even  further  by 
forbidding  all  recourse  whatever  to  private  wars  without 
a  previous  defiance,  and  by  requiring  a  delay  of  nine  days 
after  the  defiance  before  commencing  hostilities.45  In 
1187  Frederick  Barbarossa  made  a  similar  proclamation 
for  the  Empire,  a  respite  of  three  days  being  required  in- 
stead of  nine.46 

Checks  by  the  Church. — But  at  this  period  the  most  im- 
portant checks  were  those  of  the  Church,  especially  the 
famous  Truce  of  God.  Originating  in  the  County  of  Rous- 
silon,  in  Southern  France,47  it  was  rapidly  taken  up  else- 
where and  in  1095  was  solemnly  proclaimed  by  the  Council 
of  Clermont.  As  finally  sanctioned  by  the  third  Council 
of  the  Lateran  in  1179,  it  forbade  hostilities  from  sunset 
on  Wednesday  to  sunrise  on  Monday,  and  on  every  day  from 
Advent  to  the  octave  of  Epiphany  and  from  Septuagesima 
to  the  octave  of  Easter,  and  some  of  the  decrees  went  even 
further  than  this.  On  days  when  hostilities  were  author- 
ized, priests,  monks,  lay  brothers,  pilgrims,  merchants,  la- 
borers and  beasts  of  burden  were  not  to  suffer  violence. 
Those  who  broke  the  truce  were  to  be  excommunicated.4S 
This  proving  insufficient,  the  interdict  was  resorted  to,  spe- 
cial judges  were  instituted  and  the  Brotherhood  of  God 
was  formed,  one  of  whose  objects  was  the  enforcement 
of  the  foregoing  rules.49  Undoubtedly,  they  were  often 
broken,  but  they  exercised  a  great  influence  for  good  until 
the  occasion  for  them  passed  away  with  the  rise  of  strong 
temporal  powers. 

Overthrow  of  private  warfare  by  the  rising  power  of  the 
state. — The  country  least  troubled  by  private  wars  was 
England.  During  the  War  of  the  Roses,  however,  she  too 
suffered  from  them,  only  to  be  delivered  by  the  strong  hand 
of  Henry  VII.     In   France,   as   early  as   1296,   Philip   the 

44  Du  Cange,  p.  434. 

45  Nys,  p.  82. 

46  Nys,  pp.  86,  178. 

47  Diimont,  I,  43 ;  Walker,  I,  85. 

48  Decretalium  Gregorii,  IX,  L.  I.,  tit.  34,  De  Truega  et  Pace,  CC. 
1,  2:  Nys,  p.  80. 

49  Nys,  p.  80 ;  Du  Cange.  Glossarium,  Vol.  V.  p.  2,  see  also  Paciarii 
and  Vol.  VI,  p.  659;  Ward,  Law  of  Nations,  II,  24. 


REPRISALS.  17 

Fair  had  forbidden  all  private  wars  while  he  himself  was 
at  war,  and,  although  in  the  reaction  that  followed  his 
death,  even  the  forty  days'  respite  for  relatives  fell  into 
disuse,  the  power  of  the  state  eventually  reasserted  itself 
and  by  an  ordinance  of  1361  private  wars  were  forbidden 
altogether,  and  a  century  or  so  later  under  Louis  XI  were 
effectually  stopped.50  In  the  Empire  the  weakness  of  the 
Imperial  Government  allowed  them  to  continue  long  after 
they  were  done  away  with  in  England  and  France.  They 
survived  longest  in  Poland  and  Scotland,  lingering  in  the 
latter  till  well,  on  into  the  eighteenth  century.51 

Reprisals. — Another  evil  of  the  Middle  Ages  was  the  wide- 
spread practice  of  reprisals,  that  is,  of  holding  the  subjects 
of  another  power  responsible  for  the  misdeeds  or  debts 
of  fellow-subjects.  This  practice  was  often  combined  with 
that  of  private  war.  Especially  was  this  true  at  sea.  A 
notable  instance  of  it  occurred  near  the  end  of  the  thir- 
teenth century,  between  the  subjects  of  two  such  powerful 
kings  as  Edward  I  of  England,  and  Philip  the  Fair  of 
France.  An  English  sailor  having  killed  a  Norman  sailor 
in  the  port  of  Bayonne,  certain  Normans  after  applying 
in  vain  for  satisfaction  to  their  king,  seized  the  first  English 
ship  they  could  find  and  hung  several  of  the  crew  and 
some  dogs  at  the  same  time,  at  the  mast  head.  English 
sailors  retaliated  and  things  went  so  far  that  alliances  were 
formed  between  the  English,  Irish  and  Dutch,  on  the  one 
hand,  and  the  Normans,  Flemings  and  Genoese  on  the 
other;  and  a  naval  engagement  was  fought  in  which  it  is 
claimed  that  from  eight  to  fifteen  thousand  Normans  were 
slain  before   the  two  kings  finally  stepped  in.52 

Approach  the  character  of  an  ordinary  judicial  proceed- 
ing.— As  was  the  case  with  private  wars,  this  practice  of 
reprisals  soon  came  to  have  rules  of  its  own.  It  was  the 
institution  of  the  law  of  nations  which  received  the  most 
attention  from  the  great  Italian  commentators  of  the  four- 
teenth century,  and  under  them  it  came  to  have  many  of 
the  features  of  an  ordinary  legal  proceeding.53  It  was  us- 
ually held,  however,  that  reprisals  were  an  exercise  of  high 

bo  Nys,  p.  84. 

si  Ward,  Law  of  Nations,  I,  362. 

52  Ward,  Law  of  Nations,  I,  205. 

53  Nys,  pp.  64,  68. 


18  BEFORE    GROTIUS. 

prerogative  and  were  to  be  granted  by  the  sovereign  and 
not  by  the  courts,54  although  in  France  the  right  was  early 
exercised  by  the  parliamentary  courts.55  Letters  of  re- 
prisal were  not  accorded  against  women,  the  clergy,  stu- 
dents, envoys,  pilgrims,  witnesses,  merchants  on  their  way 
to  a  fair,  or  mariners  driven  into  port  or  on  the  coast  by 
tempests.56  Even  within  these  limits,  however,  the  practice 
of  reprisals  was  attended  with  great  evils,  so  that  its  op- 
eration came  to  be  restricted  by  treaties. 

They  did  not  break  the  peace. — It  is  to  be  noticed  that 
while  these  letters  of  reprisal  were  extremely  high  preroga- 
tive writs,  they  were  in  strictness  nothing  more  and  did 
not  break  the  peace.  They  later  came  to  be  known  as 
Special  Letters  of  Reprisal  to  distinguish  them  from  the 
General  Letters  which  during  the  English-Dutch  conflicts 
of  the  seventeenth  century  came  to  be  granted  generally 
to  all  subjects  irrespective  of  whether  they  themselves  had 
suffered  or  not.  Both  Special  Reprisals  and  General  Re- 
prisals, in  the  stricter  sense  of  General  Letters  of  Reprisals, 
have  now  become  obsolete.  The  General  Letters  fell  with 
privateering  through  the  Declaration  of  Paris  of  1856  while 
we  meet  with  few  cases  of  Special  Reprisals  during  the 
eighteenth  century,  although  such  important  writers  of  that 
century  as  Bynkershoek  and  Valin  discuss  them  in  great 
detail  as  though  they  were  living  institutions. 

Confusion  in  Terminology. — In  the  terminology  of  these 
letters  there  has  always  been  much  confusion.  The  dis- 
tinction between  a  letter  of  mark  and  a  letter  of  reprisal 
may  have  been  based  originally  on  the  fact  that  the  use 
of  the  one  or  the  other  was  confined  to  the  territory  of 
the  power  granting  it,  or  it  may  have  been  due  to  the  fact 
that  the  letter  of  mark  designated  the  particular  individual 
or  property  to  be  seized  while  the  letter  of  reprisal  was 
not  so  limited.  At  any  rate  they  apparently  soon  came 
to  be  used  interchangeably  and  even  to  be  popularly  known 
as  letters  of  mark  and  reprisal.  As  time  went  on,  how- 
ever, it  seems  to  have  become  customary  for  letters  of 
reprisal  to  be  granted  to  particular  aggrieved  individuals 
and  for  letters  of  mark  and  letters  of  mark  and  reprisal 

54Nys,  p.  70. 

55  Valin,  Traite  des  Prises,  Vol.  I,  p.  329;  Nys,  p.  74. 

seNys,  p.  71. 


DECLARATIONS  OF   WAR.  19 

to  be  used  only  in  case  of  General  Reprisals.  Whether  the 
latter  could  be  granted  in  time  of  peace  was  long  a  sub- 
ject of  controversy  between  England  and  the  Continental 
Powers. 

Declarations  of  War. — Early  in  the  Middle  Ages,  declara- 
tions of  war  came  to  be  recognized  as  obligatory.  It  seems 
likely  that  this  sprang  from  the  necessities"  of"  the  time,  as 
permanent  embassies  had  not  been  established ;  but  it  is 
possible  that  the  practice  of  sending  defiances  may  have 
been  carried  over  from  private  warfare,  which  without 
them  would  have  descended  into  brigandage,  and  it  may 
to  some  extent,  have  been  an  imitation  of  the  old  Roman 
practice.  The  declarations  at  first  consisted  of  letters  of 
defiance,  but  later  these  were  supplemented  or  supplanted 
by  heralds,  who  were  last  employed  by  Louis  XIII  against 
Spain  in  1635,  and  by  Sweden  against  Denmark  in  1657. 57 

The  dying  out  of  the  enslavement  of  prisoners  of  war. — 
For  one  thing  the  Middle  Ages  is  especially  to  be  com- 
mended, and  that  is  the  abandonment  of  the  practice  of 
enslaving  prisoners  of  war.  This  was  partly  the  cause 
and  partly  the  effect  of  the  dying  out  of  slavery  itself. 
The  times  themselves  made  slavery  on  a  large  scale  impos- 
sible. Strong  governments  are  necessary  to  the  protection 
of  commerce  and  wealth,  especially  wealth  in  slaves ;  and 
strong  governments  were  lacking.  The  old  agricultural 
slaves  became  serfs ;  the  slaves  in  the  large  cities  disap- 
peared as  the  cities  themselves  disappeared  or  shrank 
into  insignificance ;  while  from  the  personal  attend- 
ants of  the  nobility  sprang  the  great  part  of  the 
knights,  the  under-nobility  of  a  later  age.58  On  the 
revival  of  trade,  the  cities,  where  wealth  was  greatest,  were 
themselves  sticklers  for  liberty.  The  times  thuz  worked 
powerfully  against  slavery.  The  demand  for  slaves  died 
out,  and  without  the  demand  the  continued  enslavement  of 
prisoners  of  war  was  unlikely.  So  the  dying  out  of  slavery 
was  partly  the  cause  of  the  abolition  of  the  enslavement  of 
prisoners  of  war.  On  the  other  hand,  it  was  partly  the 
effect.    It  was  inconceivable  to  reduce  a  knight  to  slavery,"'9 

"  Twiss,  Law  of  Nations,  In  Time  of  War,  p.  57  et  seq. 

58  Brunner,   Grundzuge   der  deutschen   Rechtsgeschichte,   p.   85. 

69  Laurent,  Histoire  de  l'humanite,  VII,  229. 


L 


20  BEFORE    GROTIUS. 

and  thus  what  had  been  the  great  means  of  recruiting 
slavery  at  Rome  was  lost. 

By  the  time  of  Grotius. — When  Grotius  wrote,  in  1625, 
prisoners  of  war  were  no  longer  made  slaves  so  as  to  be 
either  sold  or  forced  to  work  or  to  do  other  things  incident 
to  the  condition  of  slavery.60  In  some  of  the  treaties,  even 
as  late  as  the  seventeenth  century,  there  are  provisions 
that  prisoners  of  war  shall  not  be  sent  to  the  galleys;  but 
condemnation  to  the  galleys  was  evidently  penal  and  not 
the  ordinary  practice.  Thus,  by  Louis  XlVth's  famous 
ordinance  of  1681,  the  captain  and  crew  of  an  enemy  priva- 
teer entering  a  French  river  were  threatened  with  condem- 
nation to  the  galleys.61  Against  those  who  continued  to 
enslave  prisoners,  however,  the  practice  of  enslavement  was 
still  kept  up.  Bynkershoek  tells  us  that  the  Dutch  were  in 
the  habit  of  selling  to  the  Spanish  as  slaves  the  Algerines, 
Tunisians,  and  Tripolitans  who  fell  into  their  hands.62 

The  practice  of  enslavement  gave  way  to  that  of  ransom. 
— For  enslavement  was  substituted  the  exaction  of  ran- 
som. Kings  were  entitled  to  the  ransoms  of  persons  of  high 
rank,  whose  ransom  exceeded  ten  thousand  livres  or  crowns, 
approximately  the  same  sum,  on  paying  that  sum  to  the 
captor,  while  the  captors  themselves  were  entitled  to  the 
ransoms  of  persons  of  lower  rank.63  If  there  were  no  con- 
vention fixing  the  amount  of  the  ransom,  the  captor  could 
fix  it,64  although  it  was  customary  during  feudalism  to  fix 
it  at  the  annual  revenue  of  the  prisoner's  estate,  and  in 
later  times  at  a  month's  pay.65  Prisoners  could  be  detained 
till  their  ransom  was  paid  and  even  permanently.  The 
lives  of  those  who  could  not  ransom  themselves  were  very 
insecure.  The  English  prisoners  taken  at  Pontoise  in  1441 
were  chained  by  their  necks  like  dogs,  and  those  who  could 
not  pay  were  thrown  into  the  Seine.  It  was  also  permis- 
sible to  refuse  all  ransom.  A  son  of  the  Emperor  Frederick 
II  died  a  prisoner  among  the  Bolognese  twenty-four  years 

co  Grotius,  III,  7,  9. 

6i  Valin,  Traite  des  Prises,  Vol.  I,  p.  44. 

G2  Bymkerschoek,  Law  of  War,  p.  21. 

63Nys,   p.   244;    Walker,   p.   249. 

si  Grotius,  III,  7,  9. 

65  Grotius,   III,   14,   9,    1;    Nys,  pp.   245-6. 


CHIVALRY.  21 

after  his  capture.00  On  the  other  hand,  prisoners  were  often 
released  on  their  parole  not  to  serve  against  the  captor 
till  they  had  obtained  their  ransom  and  to  return  to  cap- 
tivity when  called  upon  to  do  so.  Often  these  agreements 
were  strengthened  by  hostages,  who  at  times  paid  with 
their  lives  the  defalcation  of  their  principals,  although  the 
better  opinion  was  that  the  only  right  over  them  was  to 
deprive  them  of  their  liberty.07 

Development  of  chivalry. — Perhaps  even  more  important  J 
than  the  dying  out  of  the  enslavement  of  prisoners  of  war  : 
was  the  development  of  chivalry.  Early  in  the  tenth  cen- 
tury, when  the  Emperor  Henry  I  introduced  tournaments 
into  Germany,  he  ordained  that  no  one  should  be  admitted™ 
who  did  not  profess  Christianity  or  who  had  been  known 
to  be  guilty  of  perjury,  treason,  slaughter  in  cold  blood, 
sacrilege  or  violation  of  women.68  Profession  of  the  Chris- 
tian religion,  honesty,  loyalty,  fairness,  respect  for  sacred 
things,  and  honor  were  requisites  of  a  true  knight,  and 
the  necessity  of  these  qualities  was  so  drilled  into  the  aris- 
tocracy of  the  period  that  they  became  ingrained  in  all 
that  was  best  in  the  life  of  Christian  Europe  and  are  today 
what  we  prize  most  highly  in  the  qualifications  of  a  gentle- 
man. Often  the  rules  of  open  and  fair  fighting  led  to  ab- 
surd results.  One  commander  would  challenge  another  to 
battle,  naming  the  place  and  time  for  the  conflict,09  while 
the  offering  of  aid  to  a  besieged  place  was  regarded  as 
illegal.70  At  Crecy  the  fight  was  precipitated  by  the 
French  forces  unexpectedly  and  unpreparedly  coming  into 
contact  with  the  English.71  Such  entire  neglect  of  strategy 
is  hardly  comprehensible,  but  it  is  now  and  then  a  relief 
to  look  back  on  that  age  of  punctiliousness  from  the  some- 
times over-ingenious  stratagems  of  today. 

Prohibition  of  certain  weapons  and  the  exemption  of 
noncombatants. — A  characteristic  measure  of  the  age  of 
chivalry  was  the  decretal  of  Innocent  III    which  forbade 

oeNys,  pp.  240,  246;  Ward,  Law  of  Nations,  Vol.  1,  pp.  301  et  seq., 
30S  et  seq. 

67  Nys,  p.  247  et  seq.;  Ward,  II,  p.  179  et  seq. 

68  Ward,  II,  p.  161. 

69  Ward,  II,  p.  212  et  seq. 

70  Ward,  I,  p.  264. 

7i  Oman,  Art  of  War,  p.  607,  et  seq. 


22  BEFORE    GROTIUS. 

the  use  against  Christians  of  the  arbalest  or  cross-bow, 
and  of  machines  for  throwing  projectiles,  such  as  the  bal- 
lista.72  A  gloss,  however,  restricted  the  operation  of  this 
rule  to  unjust  wars.73  The  prejudice  against  firearms  is 
shown  by  the  anecdote  of  Bayard,  who,  it  is  said,  "when 
lying  mortally  wounded  of  a  harquebus  shot,  thanked  God 
that  he  had  never  showed  mercy  to  a  musketeer."74  The 
provision  of  the  Council  of  Clermont  heretofore  cited,  which 
extended  a  very  general  exemption  to  noncombatants  in 
private  warfare,  seems  to  have  been  applied  to  public  war- 
fare also.  Some  of  the  leading  canonists  of  the  fifteenth 
century  considered  it  a  dead-letter,  however,  and  it  was 
not  unusual  to  hold  for  ransom  wealthy  noncombatants  as 
well  as  soldiers.75  Merchants  were  generally  allowed  a 
reasonable  time  to  wind  up  their  affairs  and  depart  the 
country,76  a  provision  to  that  effect,  conditioned  on  reci- 
procity, being  included  in  the  Magna  Charta.77 

The  dark  side  of  mediaeval  warfare. — While  there  was 
thus  much  that  was  bright  in  mediaeval  war  practice,  there 
was  perhaps  more  that  was  dark  and  gloomy.  Pillage  in- 
variably  followed  a  successful  assault.  Garrisons  of  "places 
taken  by  assault  could  expect  little  mercy,  and  often  where 
terms  were  granted  the  commandant  and  leading  citizens 
were  excluded  from  them.78  Those  who  were  guilty  of  ob- 
stinate resistance  were  especially  liable  to  find  little  mercy 
at  the  hands  of  the  enemy.  Incomparably  the  worst  feature 
of  mediaeval  warfare,  however,  was  the  lack  of  discipline 
and  organization  in  the  armies.  Without  these,  rules  of 
any  kind  mean  almost  nothing. 

Practice  in  the  English  armies. — The  numerous  English 
army  regulations  of  the  period,  however,  would  indicate  a 
better  condition  in  the  English  army  than  elsewhere.79 
Under  Henry  V  the  organization  was  good  and  the  disci- 
pline effective,  but  this  was  exceptional.  Mountague  Bernard 

72Nys,  p.   192;   Decret.  Greg.,  Lib.  V,  Tit.  XV,  C.  Unicum. 

73Nys,  p.   192. 

74  Walker,  History  of  the  Law  of  Nations,  Vol.   I,  p.   190. 

75Nys,  pp.  193,  197,  et  seq.,  203. 

76Nys,  p.   194;    Ward,  II,  p.   356. 

tt  Stubbs,   Select   Charters,   p.   301. 

78Nys,  p.  221;   Walker  I,  p.   132. 

79  Nys,  p.  204,  et  seq. 


ENGLISH  PRACTICE.  23 

gives  the  following  account  of  the  campaigns  of  Edward 
III  and  Henry  V:  "In  the  summer  of  1346  an  English 
army,  under  Edward  III,  landed  on  the  coast  of  Normandy, 
amongst  a  peaceful  and  industrious  people,  who,  says 
Froissart,  had  never  heard  a  battle-cry,  or  seen  an  armed 
man.  They  took  and  sacked  Barfleur  and  Cherbourg,  and 
marched  on  St.  Lo.    *    *    * 

"Fair  and  cheerful  province-delicious  sight  to  a  hungry 
invader,  with  its  hamlets  and  church  towers,  its  substantial 
farms  and  large  sleek  cattle,  thick  orchards  and  green  pas- 
tures, sweeping  up  hill  and  down  dale  to  the  winding  mar- 
gin of  the  sea!  The  English  scattered  themselves  over  it, 
'ardant  et  exiUant  le  pais/  and  so  advanced,  burning  and  de- 
stroying— burning  and  destroying — over  the  rich  flats  of  the 
Beauvoisin  to  the  suburbs  of  Paris.  Immense  booty  was 
taken;  yet  the  English  host,  when  it  met  the  power  of 
France  at  Crecy,  was  reduced  to  the  utmost  extremity  of 
want. 

"Nearly  seventy  years  had  passed  from  this  time, 
when  Henry  V  appeared  before  the  gates  of  Bar- 
fleur. This  time  no  such  scourge  was  to  fall  upon  the  Nor- 
man peasantry,  who  now  knew  too  well  the  martial  sounds 
so  unfamiliar  to  their  ears  in  the  days  of  his  great  grand- 
father. It  was  the  policy  of  Henry,  and  was  agreeable  to 
his  free  and  kindly  disposition,  to  treat  the  French  as  sub- 
jects rather  than  as  enemies.  Great  stores  of  bread,  beef  and 
beer  provided  at  home,  followed  his  army,  and  he  allowed 
nothing  to  be  exacted  from  the  inhabitants,  even  when  they 
resisted  his  passage,  but  bread  and  wine.  Sir  Harris  Nicolas, 
in  the  Appendix  to  his  Battle  of  Agincourt,  has  preserved 
the  General  Orders  issued  on  this  occasion,  which  followed 
pretty  closely  those  published  in  1386  by  Richard  II.  They 
prohibit  strictly  all  bloodshed,  insults  to  women  and  wanton 
injury  to  property.  .  .  .  The  ordinances  of  Henry  were 
strictly  enforced.  The  hanging  of  Bardolph  for  stealing  a 
pix  was  a  real  incident  of  this  campaign  and  it  occurred 
when  the  army  was  in  its  greatest  straits,  before  the  battle 
of  Agincourt."80     The  lack  of  organization  by  which,  in  a 

so  Bernard,  Growth  of  Laws  and  Usages  of  War,  pp.  97-99   (Oxford 
Essays,  1856). 


24  BEFORE    GROTIUS. 

land  of  plenty,  Edward  III  was  reduced  to  want,  is  typical 
of  the  Middle  Ages. 

War  practice  of  the  Swiss  and  Italians. — Of  special  inter- 
est is  the  war  practice  of  the  Swiss  and  of  the  Italians. 
The  former  seem  to  have  considered  terror  one  of  their 
most  effective  weapons,  and  they  have  been  likened  to  the 
Romans  for  the  ferocity  which  they  sometimes  displayed.81 
The  practice  among  the  Italians,  on  the  other  hand,  except 
for  the  use  of  poison,  was  distinctly  mild.  In  the  twelfth 
chapter  of  the  Prince,  Machiavelli  could  not  find  words 
too  bitter  for  the  mercenaries  who  had  taken  the  place  of 
all  other  troops  in  Italy.     He  says : 

"They  endeavored  with  all  possible  industry  to  prevent 
trouble  or  fear,  either  to  themselves  or  their  soldiers,  and 
their  way  was  by  killing  nobody  in  fight,  only  taking  one 
another  prisoners,  and  dismissing  them  afterwards  without 
either  prejudice  or  ransom.  When  they  were  in  leaguer 
before  a  town,  they  shot  not  rudely  amongst  them  in  the 
night,  nor  did  they  in  the  town  disturb  them  with  any 
sallies  in  their  camp ;  no  approaches  or  intrenchments  were 
made  at  unseasonable  hours,  and  nothing  of  lying  in  the 
field  when  winter  came  on;  and  all  these  things  did  not 
happen  by  any  negligence  in  their  officers,  but  were  part 
of  their  discipline,  and  introduced,  as  is  said  before,  to  ease 
the  poor  soldier  both  of  labor  and  of  danger,  by  which 
practices  they  have  brought  Italy  both  into  slavery  and 
contempt."82 

War  practice  at  sea. — The  anarchy  which  prevailed  on 
land  during  the  Middle  Ages  was,  if  anything,  surpassed 
by  that  at  sea.  Piracy  was  widespread  and  truces  and 
treaties  of  peace  had  little  effect  on  maritime  hostilities.83 
Piracy  had  not  been  stamped  out  at  the  end  of  the  Mid- 
dle Ages,84  but  a  more  or  less  firm  control  had  been  gained 
over  the  forces  avowedly  in  the  service  of  belligerents  by 
the  requirement  of  privateering  commissions  and  the  es- 
tablishment of  institutions  similar  to  the  Court  of  Admiralty 
in  England.     At  first,  the  validity  of  prizes  had  been  ad- 

8i  Oman,  Art  of  War  in  the  Middle  Ages,  Lothian  Prize  Essay,  p.  63. 
82  Machiavelli,   The   Prince,   Chap.   XII    (Trans.   Morley). 
ssNys,  pp.  211-215. 
84  Walker,  I,  p.  165. 


NAVAL  WAHFAKK. 


25 


judged  summarily  by  the  admiral  of  the  fleet,  but  with 
the  grant  of  privateering  commissions  the  royal  power  in- 
sisted on  judging  the  conduct  of  its  subjects  itself.  The 
Court  of  Admiralty  in  England  dates  back  to  the  reign  of 
Edward  III.  Under  Henry  V,  private  vessels  were  required 
to  bring  their  prizes  into  court  before  disposing  of  them 
and  to  make  a  declaration  concerning  them  under  penalty 
of  confiscation.85 

85Nys,  pp.  259-260. 


26  GROTIUS    AND    HIS    TIMES. 


CHAPTER  III. 

GROTIUS   AND  HIS   TIMES. 

The  Renaissance  and  the  outburst  of  literature  on  the 
art  and  law  of  war. — In  nothing  is  the  change  from  medi- 
aeval to  modern  times  more  noticeable  than  in  the  intense 
interest  that  came  to  be  manifested  in  everything  the  an- 
cients had  to  teach  of  the  art  of  war.  Especially  in  Italy 
and  Spain,  this  resulted  in  a  great  output  of  works  on 
the  art  of  war,  which  was  followed  somewhat  later  by  a 
similar  profusion  of  works  on  the  law  of  war. 

Pierino  Belli. — Of  the  Italian  writers,  the  most  notable 
was  Pierino  Belli  (1502-1575),  who  occupied  a  position  as 
military  judge  in  the  armies  of  both  Charles  V  and  Philip 
II,  and  later  was  one  of  the  most  respected  members  of 
the  Council  of  State  of  Emanuel  Filibert  of  Savoy.  His 
work  De  re  militari  et  de  hello  appeared  in  1563,  and  was 
dedicated  to  Philip  II.  "His  purpose  is  merely  to  remind 
princes  of  what  is  permissible  and  honorable  in  the  dec- 
laration of  war  and  conclusion  of  peace;  what  should  be 
the  treatment  of  combatant  enemies,  of  prisoners,  of  the 
non-combatant  population,  of  property  of  all  kinds,  animate 
or  inanimate.  Belli 's  conception  of  his  subject  was  an  ad- 
mirable one,  but  he  was  not  so  successful  in  working  it 
out  in  detail.  He  seems  to  be  led  aside  in  order  to  touch 
upon  all  the  questions  which  had  come  before  him  as  mili- 
tary judge,  and  indeed  apologizes  for  defects  due  to  an 
active  life  spent  for  the  most  part  at  a  distance  from 
books."1 

Spanish  writers. — In  Spain  the  controversy  over  the 
right  to  enslave  the  Indians  caused  special  attention  to  be 
directed  towards  the  law  of  war  and  the  rights  it  gave. 
Two  Dominicans,  Franciscus  Victoria  (1480-1546),  a  pro- 
fessor at  the  University  of  Salamanca,  and  Dominicus  Soto 
(1494-1560),  his  pupil,  gave  scientific  form  to  the  claims 

i  Holland,   Studies  in  International  Law,  pp.  48-49. 
See  also  Nys,  Le  Droit  de  la  Guerre  et  les  Precurseurs  de  Grotius, 
pp.    170-172. 


SPANISH   WRITERS.  21 

which  their  fellow-Dominican,  Las  Casas,  so  devotedly 
urged  in  favor  of  the  aborigines.2  In  his  Relcctiones,  Vic- 
toria condemned  the  slaughter  of  innocents,  among  whom 
he  included  women,  children,  agriculturists,  strangers  and 
the  clergy.  He  considered  the  seizure  of  property  justifiable 
only  as  a  means  of  effectively  waging  war  or  of  satisfying 
an  injury  received,  and  declared  slavery  to  be  no  longer 
a  legitimate  consequence  of  war  between  Christians.  He 
also  maintained  that  hostages,  unless  they  belonged  to  the 
arms-bearing  class,  could  not  be  put  to  death  on  a  breach 
of  faith  by  an  enemy.  He  treated  the  slaying  of  enemies 
after  victory  as  lawful  only  as  a  punishment  for  some 
offense,  or  where  peace  and  safety  could  not  otherwise 
be  secured.  He  deemed  the  plundering  of  a  country  per- 
missible only  where  necessary  to  carry  on  the  war,  to  deter 
the  enemy  or  to  rouse  the  spirits  of  the  soldiers;  and 
concluded  by  urging  the  conqueror  to  exercise  his  rights 
over  hostile  territory  with  Christian  moderation.3  Soto, 
Victoria's  friend  and  disciple,  followed  in  the  same  line. 
His  ability  is  shown  by  the  fact  that  he  was  sent  as  first 
theologian  to  the  Council  of  Trent  by  Charles  V  and  after- 
wards became  his  confessor.4 

Balthazar  Ayala. — Another  celebrated  name  is  that  of 
Balthazar  Ayala,  who  wras  born  in  Antwerp  in  1548,  and 
died  in  1584.  He  was  judge  in  the  armies  of  the  Prince 
of  Parma,  Alexander  Farnese,  to  whom  he  dedicated  his 
work  from  the  camp  at  Tournay  in  October,  1581.  Like 
Belli,  he  deals  with  questions  of  military  discipline  as  well 
as  with  those  belonging  to  the  law  of  nations.5 

The  outburst  of  military  literature  in  England  a  little 
later  than  in  Italy  and  Spain.  Albericus  Gentilis.— In  Eng- 
land an  outpour  of  military  literature  took  place  similar 
to  that  in  Italy  and  Spain,  but  its  advent  was  delayed  till 
the  troubles  with  Spain  towards  the  end  of  the  century.6 
The  most  notable  among  the  works  of  this  time  is  that  on 
the  Law  of  War  by  Albericus  Gentilis.  He  was  an  Italian 
by  birth,  but  with  his  father  he  early  fled  from  Italy  on 

2  Holland,  pp.  51-54;  Nys,  Le  Droit,  etc.,  pp.  168,  169,  170. 

s  Walker,  I,  pp.  227-230. 

*  Nys,  Le  Droit,  etc.,  p.   169. 

5  Holland,  p.  54;   Nys,   pp.   173-182. 

«  Fortescue,  A  History  of  the  British  Army,  I,  p.  136. 


28  GROTIUS    AND    HIS    TIMES. 

account  of  his  Protestant  beliefs  and  found  his  way  to 
Oxford,  where  he  became  established  in  1581.  The  first 
part  of  his  great  work  De  Jure  Belli  was  published  in 
1588.  He  freed  the  treatment  of  the  laws  of  war  from  the 
questions  of  military  discipline  so  fully  discussed  by  Belli 
and  Ayala,  and  from  the  theological  associations  of  Vic- 
toria and  Soto.7  He  considered  in  detail  and  with  exten- 
sive learning  and  sound  judgment  the  conduct  of  war  and 
the  causes  that  justly  give  rise  to  it.  Walker  states  that 
his  writings  were  characterized  by  "a  vigorous  style,  di- 
rectness of  attack,  and  a  vein  of  shrewd  humor."  which 
lent  them  "a  singularly  grateful  vivacity,  and  a  high  per- 
manent value."8  His  work  has  been  called  a  juristic  com- 
mentary on  the  events  of  the  sixteenth  century.9  The  dis- 
cussion of  contemporary  events,  which  earned  for  it  this 
title  added  greatly  to  its  practical  value,  but  it  must  also 
have  raised  prejudices  against  it  as  a  scientific  treatise. 
Similar  discussion  was   accordingly  avoided   by   Grotius.10 

Early  life  of  Grotius. — .Hugo  Grntins]  \hrt  fnthrr  nf  in  _ 
ternational  law,  was  born  at  Drift,  Holland,  on  April  10, 
1583".11  His  ability  early  attracted  the  attention  of  the 
Grand  Pensionary,  Barneveldt,  and  at  the  age  of  fifteen 
he  accompanied  the  latter  and  Count  Justin  of  Nassau  on 
an  embassy  to  Henry  IV  of  France,  who  received  him  with 
marked  favor.  He  became  a  lawyer  and  was  so  successful 
that  in  1607  he  was  appointed  Advocate-General  to  the  Fisc 
of  Holland  and  Zealand,  and  in  1613  was  honored  with  the 
post  of  Pensionary  of  Rotterdam  for  life.  This  made  him 
chief  magistrate  of  that  important  place. 

His  advocacy  of  the  freedom  of  the  seas. — GrjDjtiujsiL — 
early  activity  is  identified  with  the  advocacy  of  the 
freedom  of  the  seas.  His  Mare  Libernm  appeared  in 
1609.  It  was  originally  aimea*-af  f htTmonopoly  which  the 
Portuguese  claimed  in  the  trade  with  the  East  Indies,  but 
its  special  object,  when  it  was  actually  published,  was  to 
strengthen  the  Dutch  against  similar  claims  by  the  Span- 


7  Holland,  pp.   1-39,  57-58. 
s  Walker,  I,  p.  275. 
9  Nys,  Le  Droit,  etc.,  p.  185. 
i°  Grotius,  Prolegomena,  58. 

ii  Most  of  the  facts  of  Grotius'  life  are  taken  from  his  life  by 
Burigny. 


GROTIUS'  LIFE.  29 

iards.12  Later,  Grotius  went  on  an  embassy  to  England 
to  uphold  the  right  of  his  countrymen  to  fish  in  the  seas 
of  Greenland,  which  were  included  in  the  widespread  claim 
of  the  English  to  jurisdiction  over  the  seas  surrounding 
the  British  Isles. 

His  exile. — All  this  time  the  Netherlands  were  divided 
by  a  bitter  religio-political  struggle  between  the  Arminian 
State  Rights  party  on  the  one  hand  and  the  Calvinist  House- 
of-Nassau  party  on  the  other.  Grotius  took  sides  with  the 
former,  and  with  two  of  the  other  leaders,  Barneveldt  and 
Hoogerbetz,  was  arrested.  On  May  13,  1619,  Barneveldt 
was  executed.  The  story  of  Grotius'  escape  from  prison 
two  years  later  reads  like  a  tale  of  the  Arabian  Nights. 
With  the  cooperation  of  his  wife,  he  escaped  in  a  trunk 
and  made  his  way  to  Paris,  where  for  a  time  he  received 
a  pension  from  Louis  XIII.  There  he  published  his  great 
work,  De  Jure  Belli  et  Pacis,  in  1625. 

His  last  years. — He  returned  to  his  native  land  in  1631, 
but  found  it  unadvisable  to  remain ;  and  on  the  invitation 
of  the  Chancellor  Oxenstiern  he  entered  the  Swedish  service 
as  Ambassador  to  France,  a  post  of  the  greatest  importance 
in  view  of  the  alliance  of  the  two  powers  in  the  Thirty 
Years'  War.  After  a  service  of  some  ten  years  he  became 
dissatisfied  and  asked  for  his  recall.  Queen  Christina  re- 
ceived him  with  great  honor,  but  he  declined  to  remain 
in  the  Swedish  service  and  set  out  from  Stockholm  to  Lu- 
beck.  Caught  in  a  severe  storm  at  sea,  he  was  compelled 
to  land  on  the  Pomeranian  coast  and  to  accept  conveyance 
in  an  open  wagon.  Inclement  weather  overcame  him, 
and  at  Rostock,  sixty  miles  distant,  he  was  compelled  to 
seek  the  services  of  a  physician.  He  died  there  two  days 
later,  on  August  28,  1615. 

His  greatness. — Besides  being  a  great  statesman  and  ju- 
rist, Grotius  was  a  commentator  on  the  Bible,  the  historian 
of  his  country,  and  a  dramatist  and  Latin  poet  of  no  mean 
ability.  His  works  along  all  of  these  lines  were  voluminous. 
In  theology  his  views  were  very  liberal.  He  long  hoped 
to  bring  about  a  reconciliation  between  the  Protestants  and 
the  Catholic  Church.  His  exhaustive  learning,  his  profound 
philosophy,   his   literary   gifts,   his   Christian    charity   and 

12  Westlake,  Principles,  pp.  37-38. 


30  GROTIUS    AND    HIS    TIMES. 

deep  love  of  mankind  mark  him  as  one  of  the  most  illus- 
trious ornaments  of  his  race. 

Changes  for  the  better  between  the  Middle  Ages  and  the 
time  at  which  Grotius  wrote. — From  the  period  of  the  domi- 
nation of  feudal  ideas  to  that  in  which  Grotius  wrote,  some 
changes  for  the  better  had  been  made  in  the  conduct  of 
war.  In  1521  Francis  I  and  Charles  V  had  agreed  to  ex- 
empt from  molestation  till  the  following  January,  each 
other's  subjects  engaged  in  fishing  at  sea.13  On  land  armies 
had  become  better  organized  and  drilled.  The  great  gains 
made  in  the  time  of  Louis  XIV  were  yet  to  be  realized, 
but  paid  standing  armies  were  beginning  to  be  employed, 
the  use  of  firearms  was  tending  to  make  personal  combats 
less  common  and  the  ransoming  of  prisoners  was  giving 
way  to  exchange.14 

Changes  for  the  worse.  Civil  and  religious  wars. — In  cer- 
tain ways,  however,  conditions  had  become  infinitely  worse. 
Such  events  as  the  massacre  of  St.  Bartholomew's  Day 
show  the  depth  which  religious  and  civil  discord  had 
reached.  Walker  quotes  Montluc  as  saying:  "It  is  not  in 
this  case  as  in  a  foreign  war,  when  men  fight  for  love  and 
honor;  but  in  a  Civil  War  we  must  either  be  master  or 
man,  being  as  we  live  as  it  were  all  under  a  roof;  and 
that's  the  reason  why  we  must  proceed  with  rigor  and 
cruelty."15  The  Civil  War  in  the  Netherlands  was  a  veri- 
table struggle  to  the  death.  It  is  well  known  that  a  price 
was  placed  on  the  head  of  William  the  Silent,  and  that 
he  was  subsequently  assassinated.  The  condition  of  af- 
fairs in  the  Thirty  Years'  War  was  the  same. 

Grotius'  reasons  for  writing  on  the  law  of  war. — It  was 
under  these  circumstances  that  Grotius  wrote:  "I,  for  the 
reasons  which  I  have  stated,  holding  it  to  be  most  certain 
that  there  is  among  nations  a  common  law  of  Rights  which 
is  of  force  with  regard  to  war,  and  in  war,  saw  many  and 
grave  causes  why  I  should  write  a  book  on  that  subject. 
For  I  saw  prevailing  throughout  the  Christian  world  a  li- 
cense in  making  war  of  which  even  barbarous  nations  would 
have  been  ashamed;  recourse  being  had  to  arms  for  slight 
reasons  or  no  reason;  and  when  arms  were  once  taken  up 

13  Walker,   I,   p.    190. 

i*  Nys,   Les   Oi-igines,   etc.,  p.   246. 

is  Walker,  I,  p.  192. 


GROTIUS'   WORK.  31 

all  reverence  for  divine  and  human  law  was  thrown  away, 
just  as  if  men  were  thenceforth  authorized  to  commit  all 
crimes  without  restraint."10 

Distinction  between  the  law  of  nations  and  the  law  of 
nature. — In  his  treatment  of  the  law  of  war,  Grotius  dis- 
tinguished between  that  which  was  lawful  by  the  law  of 
nations  instituted  through  the  will  of  all  or  many  nations*-7 
and  that  which,  while  it  might  go  without  punishment  and 
in  that  sense  be  lawful,  was  contrary  to  natural  reason  and 
so  not  without  fault.18  The  former,  the  law  of  nations,  was 
to  be  derived  from  the  practice  of  nations;  the  latter,  nat- 
ural law,  from  philosophers,  historians,  poets,  orators,  civ- 
ilians, canonists  and  Schoolmen. 

Grotius'  carefulness  in  not  claiming  for  his  own  opinions 
the  force  of  instituted  law. — That  part  of  the  law  of  na- 
tions which  dealt  with  war  was  the  conventional  "law 
of  war"  of  his  contemporaries.  Grotius  seems  to  have  been 
exceedingly  careful  not  to  claim  for  his  own  opinions  the 
force  of  instituted  law.  He  solicitously  separated  the  rules 
which,  from  their  origin  in  the  Roman  Law  or  in  the  prac- 
tice of  military  courts,  had  gained  unquestioned  acceptance 
from  those  of  less  definite  authority;  and  by  forbearing  to 
invest  the  latter,  by  the  mere  weight  of  his  assertion,  with 
an  authority  which  they  did  not  otherwise  possess,  he  dis- 
armed opposition  and  secured  a  favorable  hearing  for  what 
he  had  to  say. 

His  greatest  contribution  to  the  law  of  war  included  un- 
der his  law  of  nature. — His  greatest  contribution  to  the  law 
of  war  was  that  which  he  included  under  the  law  of  na- 
ture. The  conception  of  a  Natural  Law,  binding  from  its 
very  reasonableness,  was  not  a  new  one.  It  had  come  down 
through  the  Schoolmen  and  the  Roman  jurists  from  the 
Stoics.  But  Grotius  so  elaborated  it,  and  so  distinctly  made 
itTrirown  by  applying  it  to  international  relations  that 
Rivier  has  declared  him  to  be  justly  deemed  the  father  of 
both  the  Law  of  Nature  and  the  Law  of  Nations.19  The 
fundamental  principle  of  the  Law  of  Nature  applicable  to 

is  Grotius,   Prolegomena,   Par.   28    (Trans.   Whewell). 
it  Grotius,   Bk.   I.  I,   14,   1. 
is  Grotius,  III,  4,  2,  2. 

is  Holtzendorff  et  Rivier,  Introduction  au  Droit  des  Gens,  pp.  351, 
361. 


32  GROTIUS    AND    HIS    TIMES. 

war,  which  Grotius  laid  down,  was  that  "the  measures  that 
are  necessary  (to  a  lawful  end),  necessity  being  taken  not 
in  physical  exactness,  but  morally,  we  have  a  right  to 
use."20  In  other  words,  he  enunciated  the  principle  that 
comparatively  useless  injury  should  be  avoided.  In  the 
light  of  this  general  principle,  Grotius  went .  on  to  treat 
the  various  parts  of  the  law  of  war  in  detail.) 

The  right  to  kill  does  not  extend  to  noncombatants. — 
Children  are  excused  from  the  right  to  kill  by  their  age, 
women  by  their  sex.  The  same  rule  is  to  be  laid  down 
for  men  whose  modo  01  life  is  repugnant  to  arms,  such  as 
the  clergy,  students,  husbandmen  and  merchants.  Captives 
should  not  be  put  to  death,  and  quarter  should  be  given 
both  in  battle  and  in  siege.21  "Exceptions  by  no  means 
just,,  to  these  precepts  of  equity  and  natural  justice  are," 
says  Grotius,  "often  alleged:  Retaliation:  the  necessity  of 
striking  terror:  the  obstinacy  of  resistance.  It  is  easily 
seen  that  these  arc  insufficient  arguments."  AVhere  the 
disarmed  have  committed  a  broach  of  the  laws  of  war,  they 
may  be  put  to  death;  "but,"  continues  Grotius,  "as  to 
Retaliation,  nature  does  not  allow  it  except  against  the 
offender  himself.  Nor  is  it  sufficient,  that  the  enemy  is  by 
a  sort  of  fiction,  conceived  as  forming  one  body.  *  *  * 
The  advantage  which  is  expected  by  striking  terror  cannot 
give  a  right  to  kill  men;  but  if  we  have  a  right,  it  may  be 
a  reason  for  not  remitting  it.  An  obstinate  adherence  to 
one's  own  party,  if  their  cause  be  not  indecently  bad,  does 
not  deserve  punishment;  or  at  least,  not  a  punishment  ex- 
tending to  death;  for  no  impartial  judge  would  so  decide. 
*  *  *  Still  less  is  such  killing  justified  by  grief  for  calam- 
ity suffered.  "22 

Limits  to  ravaging. — As  tc>  ravaging,  ^except  there  be 
some  motive  of  utility,  it  is,"  says  Grotius,  "foolish,  for 
no  good  of  your  own  to  harm  another."  Ravaging  is  tol- 
erable which  in  a  short  time  reduces  the  enemy  to  seek 
peace*  But  this  will  not  be  the  case,  first,  where,  although 
we  be  in  a  country  yielding  provisions,  our  possession  pre- 
vents the  enemy  from  availing  themselves  of  the  supply; 
second,  where,  although  the  possession  is  doubtful,  there 

20  Grotius,   III,   1,  2,    1. 

21  Grotius,  III,  9-15. 

22  Grotius,  III,   11,   16. 


GROTIUS'    WORK.  33 

are  strong  hopes  of  victory  of  which  the  reward  will  be 
both  the  land  and  its  fruits;  third,  where  the  enemy  can 
support  himself  from  other  quarters,  as  if  the  sea  or  boun- 
daries on  another  side  be  open;  and  finally,  where  things 
are  of  such  a  nature  that  they  are  of  no  use  in  making 
or  carrying  on  war,  such  as  ornamental  works,  religious 
establishments,  monuments  for  the  dead  and  burial  places.23 
"It  is  also  most  true,"  observes  Grotius,  "as  some  theo- 
logians have  noted,  that  it  is  the  duty  of  rulers  and  leaders, 
who  wish  to  be  reckoned  Christians  by  God  and  by  men, 
to  abstain  from  storming  of  cities,  and  other  like  violent 
proceedings ;  which  cannot  take  place,  without  great  calam- 
ity to  many  innocent  persons,  and  often  do  little  to  promote 
the  ends  of  war;  so  that  Christian  goodness  almost  always, 
justice  mostly,  must  inspire  a  repugnance  to  them."24 

Right  of  acquiring  property  from  the  enemy. — As  to  the 
right  of  acquiring  property  from  the  enemy,  this,  accord- 
ing to  Grotius,  is  limited  by  the  extent  of  the  enemy's  debt 
to  you,  "except  that  beyond  this,  things  necessary  to 
your  safety  may  also  be  detained,  but  are  to  be  restored 
when  the  peril  is  over,  either  in  themselves  or  in  their 
price."25  But  Grotius  makes  a  distinction  between  civil 
debts,  those  due  to  rectify  an  existing  inequality,  and  those 
due  as  a  penalty  for  wrong-doing.  For  the  first  kind,  the 
property  of  the  subjects  may  be  treated  as  security,  as  where 
reprisals  are  ordered,  and  so  many  be  taken,20  but  "such 
an  obligation,  imposed  on  the  property  of  another,  is"  he 
says,  "an  odious  rule,  and  therefore  ought  not  to  be  car- 
ried further  than  it  appears  to  be  actually  settled."27  With 
debts  due  to  rectify  an  existing  inequality  are  classed 
those  arising  from  war  undertaken  to  rectify  such  in- 
equality.28 

Exhortation  to  respect  private  property. — "But,"  says 
Grotius,  "the  rules  of  charity  are  wider  than  those  of 
justice"  and  "humanity  requires  that  we  should  leave,  to 
those  who  are  not  in  fault  in  the  war,  and  who  are  only 

23  Grotius,  IIL  1-4. 

2*  Grotius,  III,  12,  8,  4. 

25  Grotius,  III,  13,   1.   1. 

26  Grotius,  III,  13,   1,  2. 
^  Grotius,  III,  13,  2. 

28  Grotius,  III,   13,  3. 

3 


34  GROTIUS    AND    HIS    TIMES. 

bound  as  sureties,  the  things  which  they  cannot  do  with- 
out better  than  we  can,  especially  if  it  appear  that  they 
will  not  recover  from  their  city  what  they  thus  lose ; ' '  and 
"this  also  is  to  be  noted,  that  so  long  as  we  have  a  hope 
of  receiving  our  debt  from  the  original  debtor,  or  from 
those  who  have  made  themselves  debtors  by  not  yielding 
our  right,  to  come  upon  those  who  are  free  from  fault, 
although  it  may  not  be  at  variance  with  strict  law,  is  con- 
trary to  humanity."29 

Ransom. — Prisoners  of  wrar  no  longer  being  made  slaves, 
"it  will,"  declares  Grotius,  "be  the  best  course  to  exchange 
the  prisoners ;  and  next  to  that,  to  let  them  be  ransomed 
at  a  reasonable  price.  What  this  is,  cannot  be  precisely 
defined,  but  humanity  teaches  us  that  it  should  not  be 
stretched  so  far  that  it  leaves  the  prisoner  without  the  nec- 
essaries of  life."30 

Moderation  in  Conquest. — In  Conquest,  it  is  often  not 
only  a  measure  of  humanity  but  also  one  of  prudence  to 
permit  the  vanquished  to  retain  their  power  of  govern- 
ment, if  not  wholly,  at  least  in  part ;  but,  even  when  all 
authority  is  taken  from  them,  they  should,  so  Grotius  main- 
tains, be  allowed  to  retain  their  own  laws  with  regard  to 
public  and  private  property,  their  own  customs  and  mag- 
istrates, and,  as  part  of  this  indulgence,  the  observance 
of  their  own  religion,  except  so  far  as  they  may  be  per- 
suaded to  change.31 

Conclusion. — In  conclusion,  Grotius  says:  "May  God 
write  these  lessons, — he  who  alone  can, — on  the  hearts  of 
all  those  who  have  the  affairs  of  Christendom  in  their 
hands :  and  may  he  give  to  those  persons  a  mind  fitted  to 
understand  and  to  respect  Rights,  divine  and  human;  and 
lead  them  to  recollect  always  that  the  ministration  com- 
mitted to  them  is  no  less  than  this ;  that  they  are  the  gov- 
ernors of  Man,  a  creature  most  dear  to  God."32 

Influence  of  Grotius'  work. — The  work  of  Grotius  made 
a  tremendous  impression.  Gustavus  Adolphus,  the  greatest 
captain  of  his  age,  expressed  the  highest  admiration  for 
the  author  and  recommended  that  he  be  taken  into  the 

29  Grotius,  III,  13,  4. 
so  Grotius,  III,  14,  9. 
si  Grotius,  III,  15,  7-10. 
32  Grotius,  III,  25.  8. 


SAMUEL  PUFENDORF.  35 

Swedish  service.33  It  is  said  that  he  always  carried  a  copy 
of  the  De  Jure  Belli  ct  Paeis  with  him.  Editions,  transla- 
tions and  commentaries  multiplied  on  every  hand  and  the 
recognition  it  had  gained  for  the  law  of  nations  and  of 
nature  in  the  field  of  jurisprudence  was  manifested  by 
the  establishment  of  a  chair  in  that  subject  at  Heidelberg 
by  the  Elector  Palatine,  Charles  Lewis,  in  1661  .:u 

Samuel  Pufendorf. — The  first  incumbent  of  that  chair 
was  Samuel  Pufendorf.  His  contributions  to  the  laws  of 
war,  however,  were  comparatively  unimportant.  They  oc- 
cupy but  a  small  part  of  his  immense  work. 

Conduct  of  the  Thirty  Years'  War. — Great  as  was  the 
influence  of  Grotius'  work,  it  could  not  be  expected  to  re- 
store to  its  normal  condition  a  war  such  as  that  of  the 
Thirty  Years,  which  had  been  commenced  in  civil  and  re- 
ligious strife  and  carried  on  with  cruelty  and  bitterness. 
Gustavus  Adolphus  was  so  high-minded  and  maintained 
such  excellent  discipline  that  he  was  able  to  preserve  in 
his  army  a  high  standard  in  the  observance  of  the  laws 
of  war,  but  other  commanders  had  neither  his  power  nor 
his  good-will.  Six  years  after  the  publication  of  Grotius' 
work  occurred  the  horrors  of  the  siege  of  Madgeburg. 

Oliver  Cromwell. — A  notable  instance  of  the  old  practice 
of  using  terror  as  a  means  of  warfare  was  the  refusal  of 
quarter  at  Drogheda  by  Cromwell.  "It  will  tend  to  pre- 
vent the  effusion  of  blood  for  the  future,"35  he  said.  Pos- 
sibly it  did  this  temporarily,  but  it  is  also  said  that  its 
"memory  still  helps  to  separate  the  two  races  Cromwell 
wished  to  unite."36  From  these  events  we  turn  with  relief 
to  a  newer  and  better  era.  The  Treaty  of  Westphalia  (1648) 
marks  roughly  the  end  of  the  old. 

33Burigny,  Life  of  Grotius,  p.  135;  Hely,  Etude  sur  le  Droit  de  la 
Guerre  de  Grotius,  p.  30. 
34  Walker,  I,  337. 

ss  Morley,   Oliver  Cromwell,   p.   301. 
36  Firth,  Cromwell,  p.  261. 


36  WARS   OF   PRINCES. 


CHAPTER  IV. 


WARS  OF  PRINCES. 


Commencement  of  a  new  era. — From  the  Dutch  wars  of 
Louis  XIV  to  the  present  time  the  character  of  war  has 
been  much  the  same.  If  anything,  the  wars  of  the  early 
part  of  this  period  were  less  severe  than  those  of  more 
recent  times.  They  lacked  the  religious  and  civil  element 
of  the  wars  which  had  preceded  them  and  were  essentially 
struggles  between  princes,  who  regarded  with  disdain  the 
participation  of  the  masses  in  politics  or  war.  The  armies 
were  small,  paid,  highly-trained  bodies.  Their  leaders  took 
pride  in  their  knowledge  of  the  art  of  war,  and  strategy 
in  particular,  and  for  the  purposes  of  strategy,  the  hus- 
banding of  their  own  resources  and  those  of  the  country 
through  which  they  were  marching  was  absolutely  neces- 
sary. Furthermore,  the  work  of  Grotius  had  crystallized 
public  sentiment  and  it  was  not  unnatural  that  the  ad- 
mirers of  Gustavus  Adolphus,  as  all  the  great  generals  of 
the  period  seem  to  have  been,  should  also  have  admired 
the  great  work  which  had  been  his  constant  guide. 

The  place  of  the  herald-at-arms  taken  by  the  permanent 
embassies. — With  the  establishment  of  permanent  embas- 
sies, the  sending  of  heralds-at-arms  to  declare  war  grew 
to  be  incongruous,  and  as  we  have  seen,  the  last  instance 
of  that  custom  was  in  1657.1  It  had  served  as  a  warning  to 
the  enemy  and  as  the  test  of  full  legal  war.  As  a  warning 
to  the  enemy,  its  place  was  taken  and  much  more  than 
taken  by  the  establishment  of  the  permanent  embassies, 
which  facilitated  the  presentation  of  demands,  allowed  of 
the  continuance  of  long  negotiations,  and  served  as  a 
source  of  information  of  the  preparations  of  a  possible  en- 
emy. Even  such  writers  as  Bynkershoek  and  Ward,  who 
did  not  believe  in  the  necessity  of  a  formal  declaration, 
thought  it  necessary  that  there  should  be  a  demand  of 
satisfaction  for  the  injury  complained  of,  and  a  denial  or 
delay  of  the  same  before  recourse  to  arms.     Formal  dec- 

i  See  supra,  p.   19. 


PRIOR  DECLARATIONS.  37 

larations  as  warnings  to  the  enemy  were  •  superseded  by 
ultimatums,  or  the  rupture  of  diplomatic  relations  under 
such  circumstances  as  to  leave  little  doubt  of  the  intentions 
of  the  parties.  Practice  under  the  new  order  of  things 
was  far  from  what  might  have  been  desired,  but  the  new 
institution  in  itself  was  far  better  calculated  to  guard 
against  surprise,  treachery  and  disloyalty  than  the  old. 

The  old  declaration  a  test  of  legal  war  rather  than  a 
warning  to  the  enemy. — But  the  old  declaration  of  war 
had  served  as  a  test  of  full  legal  war,  as  well  as  a  warning 
to  the  enemy,  and  this,  according  to  Grotius,  was  its  real 
significance.  He  says  that  the  reason  for  it  was  "that  it 
might  be  clearly  known  that  the  war  was  undertaken,  not 
as  a  venture  of  private  persons,  but  by  the  will  of  the  two 
peoples,  or  their  heads ;  for  from  this  public  character  arise 
peculiar  effects,  which  do  not  take  place  either  in  a  war 
carried  on  against  pirates,  or  in  one  which  a  king  makes 
against  his  subjects. '  '2  It  is  in  this  sense  that  the  declaration 
continued  for  a  long  time  to  have  a  more  or  less  obligatory 
character,  and  it  is  mainly  in  this  sense  that  it  has  been 
revived  today  by  The  Hague  Convention.  It  may  be  inter- 
esting to  note  how  from  a  necessary  preliminary  to  war  it 
came  to  be  little  more  than  a  public  recognition  of  its  ex- 
istence. 

Declarations  were  not  necessary  against  those  joining 
the  enemy.— In  the  first  place  it  must  be  remembered  that 
Grotius  himself  held  that  no  declaration  was  necessary 
against  those  who  joined  themselves  to  the  enemy.3  Nor 
did  the  mere  giving  of  aid  to  one  of  the  belligerents  re- 
quire a  declaration.  Many  of  the  earlier  cases  of  war  with- 
out declaration  were  cases  of  this  kind.  Elizabeth  justi- 
fied her  not  declaring  war  against  Philip  of  Spain  on  the 
ground  that  she  was  merely  aiding  The  Netherlands  in 
accordance  with  ancient  treaties,  and  Gustavus  Adolphus 
justified  his  failure  to  declare  war  against  the  Emperor 
by  the  fact  that  the  year  previous  the  Emperor  had  aided 
the  King  of  Poland  against  him  without  declaration.  Many 
of  the  cases  given  by  Colonel  Maurice  in  his  Hostilities 
without  Declaration  of  War  are  of  this  kind.  Numerous  in- 
stances of  this  occurred  in  the  War  of  the  Austrian  Succes- 


2  III,    XI. 

3  in,  IX. 


14 


38  WARS   OF   PRINCES. 

sion,  in  the  Seven  Years'  War,  and  in  the  "War  for  American 
Independence.  All  the  old  rule  required  was  that  war 
should  be  commenced  by  a  declaration.  "When  once  com- 
menced, others  might  be  embroiled  in  it  without  declara- 
tion. It  is  easy  to  see  how  important  this  exception  was, 
especially  during  the  eighteenth  century,  when  a  large  part 
of  Europe  eventually  came  to  be  involved  in  the  numerous 
wars  that  occurred. 

Nor  where  a  war  was  commenced  under  pretext  of  title. 
— In  a  number  of  other  cases  wars  were  commenced  under 
pretext  of  title.  They  were  ostensibly  civil  wars,  and 
so  came  within  another  exception  to  the  old  rule,  that  dec- 
larations were  not  necessary  in  civil  war.  It  was  thus 
that  the  War  of  Devolution  was  commenced  in  1667  by  the 
claim  of  Louis  XIV  to  the  Spanish  Netherlands,  the  War 
of  the  Spanish  Succession  in  1701  by  the  claim  of  the  Em- 
peror Leopold  to  Lombardy,  and  the  War  of  the  Aus- 
trian Succession  in  1741  by  Frederick  the  Great's  claim 
to  Silesia.  Frederick  likewise  disclaimed  all  hostile  inten- 
tion in  his  seizure  of  Saxony  in  1756.  Ostensibly  then 
these  were  not  violations  of  the  old  rule  as  to  the  necessity 
of  declarations  of  war. 

Influence  of  maritime  pretensions  and  struggle  for  trade 
and  territory  in  the  colonies. — The  above  cases,  then,  did 
not  mark  any  change  in  formal  practice.  Of  more  import- 
ance were  the  informal  hostilities  growing  out  of  (1),  the 
maritime  pretensions  such  as  those  of  the  English  in  the 
four  seas  and  those  of  Spain  in  America  and  (2),  the  strug- 
gle for  trade  and  territory  in  the  colonies.  The  action  of 
men  like  Drake  had  little  or  no  direct  effect  on  the  laws 
of  Avar,  as  their  actions  were  but  little,  if  any,  removed 
from  piracy,  but  the  example  of  their  lawless  depredations 
was  not  without  its  effect  when  the  race  for  colonial  pos- 
sessions commenced.  Thus  the  expedition  sent  by  Crom- 
well to  the  AVest  Indies  in  1654,  which  resulted  in  the  ac- 
quisition of  Jamaica,  was  little  better  than  a  filibustering 
expedition,  while  not  much  more  can  be  said  of  the  expe- 
dition to  Africa  and  America  of  Admiral  Holmes  in  1664, 
which  finally  resulted  in  open  war  between  the  English 
and  the  Dutch.  Of  not  quite  so  objectionable  nature  were 
the  colonial  hostilities  carried  on  between  the  Dutch  and 
the  Portuguese,  which  resulted  in  a  declaration  of  war  in 


PRIOR  DECLARATIONS.  39 

1657,  as  Portugal's  independence  of  Spain  had  not  yet  been 
generally  recognized,  so  that  any  action  by  or  against  her 
was  of  an  exceptional  nature.  These  hostilities,  as  well  as 
the  blockade  of  Porto  Bello  in  1726  by  Admiral  Hosier,  and 
the  fighting  which  commenced  in  America  in  1754  between 
the  French  and  English  had  a  perceptible  influence  on  the 
European  practice  of  commencing  hostilities.  For  instance, 
the  blockade  of  Porto  Bello  in  1726  was  followed  by  the 
siege  of  Gibraltar  in  1727,  without  formal  declaration,  and 
the  fighting  between  the  French  and  English  in  America 
in  1754  and  1755,  was  followed  by  the  expedition  against 
Minorca  in  1756,  also  without  a  declaration.  But  their  im- 
portance is  likely  to  be  exaggerated,  as  the  colonies  have 
always  held  an  exceptional  place  in  the  public  law  of 
Europe. 

The  sequestration  of  property  and  the  issuance  of  general 
letters  of  marque  and  reprisal  prior  to  a  declaration  the 
determining  factor  in  making  prior  declarations  unneces- 
sary.— "Whatever  importance  incidents  like  the  above  did 
have  in  accustoming  the  public  mind  to  hostilities  with- 
out declaration  of  war,  the  determjning  factor  that  led  to 
Jjift_qnit.pi  general  acceptance  of  the  doctrine  that  a  formal 
d ftp.la.rat.inTi  was  not  necessajrg_lo  constitute  war  m  its  full 
legal  sense,  was  the  practice  which  became  general  from 
the  middle  of  the  seventeenth  century,  of  sequestrating 
property,  and  of  granting  general  letters  of  marque  and 
reprisal,  in  contemplation  of  Avar.  One  of  the  early  in- 
stances of  this  practice  occurred  in  1664.  in  connection 
with  the  war  between  the  English  and  the  Dutch.  On  the 
sixteenth  of  December,  1664,  Charles  II  issued  a  proclama- 
tion empowering  his  subjects  to  make  reprisals  on  all  Dutch 
ships.  This  was  followed  by  a  similar  declaration  on  the 
part  of  the  Dutch  on  January  24,  1665,  although  no  dec- 
laration of  war  was  made  till  the  following  March.4  It  is 
probable  that  it  was  in  connection  with  this  that  De 
Witt  made  his  famous  statement  that  "he  saw  no  differ- 
ence between  General  Reprisals  and  Open  War,"  rather 
than  in  connection  with  the  grant  of  letters  to  the  agent 
of  the  Knights  of  Malta,  two  years  earlier  as  supposed  by 
Twiss.5    The  reason  for  this  action  on  the  part  of  the  Eng- 

4Lediard,  The  Naval  History  of  England,  575. 
s  Twiss,  I,  31. 


40  WARS   OF   PRINCES. 

lish  King  is  very  quaintly  put  in  Kennet's  Collection  of 
English  History,0  where  he  says:  "It  is,  however,  a  jus- 
tice to  observe,  that  this  way  of  dealing  with  our  friends 
before  we  had  pronounced  them  enemies,  was  not  merely 
a  trick  of  France,  or  an  intrigue  of  our  own  ministry  (as 
some  have  labored  to  represent  it),  but  it  was  the  very 
voice  of  the  English  people,  and  especially  the  cry  of  all 
our  merchants  and  traders.  The  city  of  London  was  so 
full  of  all  resentments  against  the  Dutch  for  engrossing 
and  usurping  upon  navigation  and  commerce,  that  they 
not  only  lent  a  hundred  thousand  pounds  (as  before  re- 
membered) for  expedition  of  the  fleet,  but  when  the  king 
still  wanted  another  like  sum,  they  advanced  it  with  the 
same  readiness."  It  was  the  granting  of  the  general  let- 
ters at  this  time  that  Lord  Hale  instanced  as  an  example 
of  war  commencing  without  a  solemn  declaration.7  Eng- 
land, however,  was  not  the  only  offender  along  these  lines, 
for  while  the  seizure  of  the  goods  belonging  to  the  Dutch 
in  1657  by  the  French  may  be  considered  as  an  instance 
of  reprisals  properly  so-called,  as  distinguished  from  repri- 
sals in  contemplation  of  war.  the  same  cannot  be  said  of 
the  seizure  of  the  goods  of  the  Dutch  by  Louis  XIV  in 
]J688.8 
f  The  memory  of  the  old  rule  lingered  on. — The  number 
]  of  examples  of  these  seizures  in  contemplation  of  war  was 
j  the  principal  basis  for  the  contention  of  Bynkershoek  in 
/  1737  that  ^rjDiiusJ.  assertion  that  the  cusTo7irary~'~law  of 
i  nations  required  a  declaration  of  war,  could  not  be  sus- 
tained.9 But  despite  the  frequency  of  these  sequestrations 
and  grants  of  general  letters  of  marque  and  reprisal  prior 
to  the  declaration  of  war,  it  was  long  felt  that  seizures 
made  prior  to  a  declaration  were  void,  and  that  the  ships 
seized  should  be  handed  back.  Thus  in  the  negotiations 
between  Stanley  and  Bussy  in  1761,  looking  to  the  termina- 
tion of  the  Seven  Years'  War,  it  was  demanded  that  all 
private  ships  taken  prior  to  the  declaration  of  war  should 
be  restored  or  compensated  for,  because  taken  contrary  to 

6  2,  251. 

7  Pleas  of  the  Crown,   162-163. 
s  Bynkershoek,  pp.  16-17. 

o  P.  6,  et  seq. 


PRIOR  DECLARATIONS.  41 

the  law  of  nations.10  And  although  in  the  final  treaty  noth- 
ing was  said  on  this  subject  with  regard  to  French  ships, 
it  was  agreed  with  Spain  that  the  decision  of  prizes  made 
in  time  of  peace  by  the  subjects  of  Great  Britain  should 
be  referred  to  the  British  Admiralty,  to  be  judged  accord- 
ing to  treaties  and  the  law  of  nations.11  Even  as  late  as 
August  12,  1778,  Lord  Chancellor  Thurlow  wrote:  "I 
find  a  doubt  hath  been  started  whether  it  be  correct  to 
make  a  prize  or  to  condemn  it  as  confiscate,  and  still  more 
to  distribute  it  to  the  captors,  before  a  Declaration  of  War. 
Upon  the  last  it  is  insisted  that  the  goods  of  nations  not 
declared  Enemies  can  at  most  be  taken  as  Reprisal,  and 
detained  only  as  pledges  for  satisfaction.  It  is  said  that 
this  was  done  in  1754,  and  that  no  prizes  were  actually 
condemned  or  distributed  before  Declaration  of  War  at 
that  period."12  This  was  written  in  a  letter  to  Philip  Step- 
hens, Secretary  of  the  Admiralty,  requesting  that  a  care- 
ful search  should  be  made  for  precedents  in  these  matters 
subsequent  to  the  Revolution. 

The  question  put  at  rest  for  Anglo-American  courts,  at 
least,  by  Lord  Stowell. — All  doubt  of  the  legality  of  the 
seizure  of  private  property  of  the  enemy  before  the  decla- 
ration of  war  was  finally  settled  for  British  and  American 
courts,  at  any  rate,  by  Lord  Stowell,  in  the  case  of  The 
Boedus  Lust13  when  "he  held  that  the  seizure  oi'  Dutch  prop-  " 
erty  under  an  embargo  in  1803  was  at  first  equivocal,  but 
that  as  the  transaction  ended  in  hostilities,  these  had  the 
retroactive  effect  of  making  the  original  seizure  hostile,  and 
the  property  seized  good  prize.  £*Tn  other  words,  he  held 
that  acts  of  force  used  against  another  nation  might  not 
constitute  war  in  themselves,  but  that  if  war  followed, 
it  had  a  retroactive  effect  and  constituted  the  first  acts  of 
force,  the  commencement  of  the  wacTV  From  Lord  Stowell's 
time  this  view  that  war  declarations  might  have  a  retro- 
active effect,  and  did  not  necessarily  precede  the  capture 
of  private  property,  was  generally  sustained,  especially  in 
England  and  the  United  States. 

Embargoes  and  letters  of  marque  and  reprisal  now  things 

10  Ward,  p.  38. 
ii  Ward,  p.  39. 

12  II  Twiss,  67. 

13  5  Rob.,  246. 


42  WARS  OF  PRINCES. 

of  the  past. — It  is  interesting  to  note  that  the  practices 
which  had  been  the  special  occasion  of  the  incorporation 
of  the  retroactive  effect  of  declarations  of  war  into  the 
law  did  not  long  survive  Lord  StowelPs  decision.  Grants 
of  letters  of  marque  and  reprisal,  and  embargoes  in  con- 
templation of  war,  soon  became  things  of  the  past.  TJie 
former  were  in  effect  abolished  by  the  TWlavat.irm  ^f  Paris^ 
and  from  the  Crimean^W  ar  it  has  been  customary  to  allow 
a  certain  time  after  the  outbreak  of  hostilities  for  the  de- 
parture of  merchant  ships  belonging  to  the  nationals  of 
the  enemy.  It  is  for  this  reason  that  some  have  claimed 
that  the  rule  laid  down  by  Lord  Stowell  itself  had  changed, 
but  the  careful  study  of  the  wars  of  the  last  fifty  years 
by  M.  Dupuis  shows  this  not  to  have  been  the  case.14 

No  special  form  for  declarations. — Since  the  old  sending 
of  heralds-at-arms,  there  has  been  no  particular  form  for 
making  declarations.  Most  of  those  of  the  seventeenth  and 
eighteenth  centuries  seem  to  have  been  printed  declarations 
published  at  home.  An  interesting  survival  of  a  part  of 
the  old  custom  of  declaration  by  herald  was  that  of  Eng- 
land against  France  in  1778,  as  described  by  the  Russian 
envoy  to  London.15  "A  herald,  drawn  from  the  mounted 
guard  of  the  king,  read  the  declaration  of  war  to  the  noise 
of  trumpets  and  timbals,  before  the  palace  of  St.  James, 
where  the  king  stood  in  the  embrasure  of  an  open  window, 
hat  on  head  and  sword  in  hand;  this  sword,  like  the  tem- 
ple of  Janus,  which  remained  open  among  the  Romans  till 
peace,  remains  unsheathed  in  the  church  till  the  end  of 
hostilities."16  In  the  United  States  declarations  of  war 
have  taken  the  form  of  acts  of  Congress,  and  have  been 
declarations  of  the  existence  of  war  rather  than  declara- 
tions of  future  war. 
^  Substitution  of  contributions  for  pillage. — One  of  the 
greatest  advances  ever  made  in  the  conduct  of  warfare 
was  the  substitution,  during  this  period,  of  contributions 
for  pillage.  Gustavus  Adolphus  had  ransomed  towns  from 
pillage  during  the  Thirty  Years'  War,17  and  the  generals 
of  the  period  of  Louis  XIV  followed  in  this  as  in  other 

14  13  R.  G.  D.  I.  P.,  725. 

is  II  Rivier,  224. 

16  Martens,  9  Recueil  des  Traites  conclus  par  la  Russie,  290. 

i7  Hall,  International  Law,  p.  442. 


CONTRIBUTIONS.  43 

branches  of  war  the  footsteps  of  their  great  master.  Of 
the  early  practice  of  contributions,  Vattel  says:  "The  long 
wars  of  France  in  the  reign  of  Louis  XIV  furnish  an  in- 
stance which  can  never  be  too  much  commended.  The 
sovereigns  being  respectively  interested  in  the  preservation 
of  the  country,  used  on  the  commencement  of  war  to  enter 
into  treaties,  for  regulating  the  contributions  on  a  sup- 
portable footing:  both  the  extent  of  the  country  in  which 
each  could  demand  contributions,  the  amount  of  them,  and 
the  manner  in  which  the  party  sent  for  levying  them  were 
to  behave,  were  settled.  In  these  treaties  it  was  expressed 
that  no  body  of  men  under  a  certain  number,  should  ad- 
vance into  the  enemy's  country  beyond  the  bounds  agreed 
upon  under  the  penalty  of  being  treated  as  parti  bleu 
(marauders  or  robbers).  This  was  preventing  a  multitude 
of  disorders  and  enormities,  committed  on  quiet  people, 
and  generally  without  the  least  advantage  to  the  sovereigns 
at  war."18 

Marshal  Saxe's  method  of  levying  contributions.— Mar- 
shal Saxe  describes  the  methods  pursued  by  him:  "An 
experienced  general,  so  far  from  maintaining  the  troops 
under  his  command,  at  the  expense  of  their  sovereign,  will, 
by  raising  contributions,  secure  their  subsistence  for  the 
ensuing  campaign,  so  that  being  well  lodged,  clothed  and 
supported,  they  will  consequently  be  easy,  contented  and 
happy.  In  order  to  accomplish  this,  it  will  be  necessary 
to  fall  upon  a  method  of  drawing  supplies  of  provisions 
and  money  from  remote  parts  of  the  country,  but  without 
fatiguing  thereby  the  troops  too  much;  large  detachments 
are  exposed  to  the  danger  of  being  cut  off  by  the  enemy; 
are  likewise  detrimental  to  the  service,  and  rarely  produc- 
tive of  those  advantages  which  are  expected  from  them; 
the  best  way  is  to  transmit  to  those  places  from  which  con- 
tributions are  required,  circular  letters,  threatening  the 
inhabitants  with  military  execution,  on  pain  of  their  re- 
fusal to  answer  the  demand  made  from  them ;  which  ought 
at  the  same  time,  to  be  moderate  and  proportionable  to 
their  several  abilities;  after  which,  intelligent  officers  must 
be  selected,  and  detached  with  parties  of  twenty-five  or 
thirty  men,  allotting  to  each  a  certain  number  of  villages, 

i«  Vattel,  Bk.  Ill,  Chap.  IX,  Sec.  165;  see  also  Bernard,  History  of 
the  Laws  and  Usages  of  War,  pp.   101-103. 


44  WARS   OF   PRINCES. 

and  giving  them  strict  orders  to  march  by  night  only,  and 
not  to  plunder,  or  commit  any  manner  of  outrage  on  pain 
of  death.  When  they  arrive  at  their  appointed  places  they 
must  send  a  noncommissioned  officer  and  two  men  in  the 
evening  to  the  chief  magistrate  to  know  if  he  is  prepared 
to  take  up  his  acquittance,  which  will  be  given  under  the 
hand  and  seal  of  the  commander  in  chief  of  the  army;  if 
he  answers  in  the  negative,  the  commanding  officer  is  not 
thereupon  either  to  plunder  the  place,  or  to  take  the  sum 
required,  but  must  discover  himself,  and  his  party,  set  fire 
to  some  detached  house,  and  afterwards  march  away  again, 
threatening  at  the  same  time  to  return  and  burn  the  whole 
village. 

"All  these  parties  are  to  be  assembled  at  some  rendezvous, 
before  they  are  dismissed,  where  a  strict  enquiry  must  be 
made  into  their  conduct,  and  those  who  are  found  guilty 
of  the  least  rapine,  be  hanged  without  mercy;  if  any  offi- 
cers likewise  are  convicted  of  having  taken  or  received 
money  from  the  villages  they  must  be  punished  with  death, 
or  cashiered  at  least.  But  if,  on  the  other  hand,  it  appears 
that  they  have  properly  executed  their  orders,  they  must 
be  rewarded  accordingly;  this  method  of  raising  contribu- 
tions will  thus  be  rendered  familiar  to  the  troops  and  all 
the  places  that  have  been  summoned  within  a  hundred 
leagues  in  circumference,  will  not  fail  to  bring  their  stip- 
ulated quantities  of  provisions  and  money;  for  the  calam- 
ities they  have  been  threatened  with,  in  case  of  their  delay, 
will  augment  their  fears  to  such  a  degree  that  they  will 
be  very  glad  to  purchase  their  security,  by  discharging  the 
demand  made  upon  them,  notwithstanding  any  prohibitions 
which  may  have  been  issued  by  the  enemy  to  the  contrary. 

"Twenty  parties  detached  monthly  will  be  sufficient  to 
accomplish  the  whole  affair,  neither  will  it  be  possible  for 
the  enemy  to  discover  them,  notwithstanding  his  most  dili- 
gent endeavors  for  that  purpose,  provided  they  make  use 
of  the  proper  precautions  on  their  march,  and  adhere  to 
their  instructions. 

"Large  bodies  of  troops  detached  on  these  duties  encom- 
pass in  the  execution  only  a  small  tract  of  country,  and 
spread  distress  in  every  place  where  they  appear;  the  in- 
habitants conceal  their  cattle  and  effects  from  them,  and 
can  hardly  be  compelled  to  surrender  up  anything,  because 


CONTRIBUTIONS. 


45 


they  are  very  sensible,  that  their  stay  can  be  but  short; 
and  that,  as  they  take  care  to  send  the  earliest  intelligence 
of  their  situation  to  the  enemy,  he  will  soon  relieve  them; 
a  circumstance  by  which  such  large  parties  have  frequently 
been  obliged  to  retreat  with  all  the  expedition  they  could, 
after  having  totally  miscarried  in  their  undertaking,  and 
left  several  of  their  men  behind  them ;  but  even  when  they 
meet  with  no  interruption  from  the  enemy,  the  command- 
ing officers,  either  influenced  by  fear,  necessity  or  self- 
interest,  generally  enter  into  some  composition  with  the 
inhabitants,  and  return  with  only  a  small  part  of  what  was 
demanded,  and  with  the  troops  much  harassed  and  out  of 
condition. 

"This  is  the  usual  consequence  attending  this  method  of 
raising  contributions,  while,  on  the  other  hand,  that  which 
I  have  been  proposing,  cannot  fail  of  success. 

"In  order,  moreover,  to  render  the  payment  as  easy  as 
possible  to  the  inhabitants,  they  must  only  be  required  to 
make  it  monthly,  in  such  shares  and  proportions  as  the 
commander  in  chief  shall  appoint;  in  consequence  of  which 
indulgence,  added  to  their  apprehensions  of  having  their 
habitations  burnt,  unless  they  comply  therewith,  they  will 
assist  one  another  and  be  able  to  advance  the  whole  with 
much  less  inconvenience  and  distress;  those  who  are  at 
the  greatest  distance  disposing  of  their  properties  in  order 
to  bring  their  respective  contributions  in  money,  and  those 
which  lie  contiguous,  furnishing  theirs  in  provisions. 

"These  parties  must  either  be  very  unfortunate  indeed, 
or  else  very  imprudently  conducted,  if  they  fall  into  the 
hands  of  the  enemy;  because  with  twenty-five  or  thirty 
men  on  foot,  one  may  traverse  a  whole  kingdom  with  se- 
curity; when  they  find  themselves  discovered  they  must 
immediately  march  off  the  ground;  for  the  enemy  will  be 
deterred  from  pursuing  them  far,  particularly  in  the  night- 
time, by  the  apprehension  of  falling  into  an  ambuscade; 
a  circumstance  which  might  very  well  come  to  pass,  es- 
pecially when  several  of  the  parties  have  agreed  together 
upon  certain  places  of  appointment  to  assemble  at,  in  case 
of  such  accidents. 

"Nothing  can  be  more  entertaining  than  these  incur- 
sions, and  the  soldiers  themselves  will  certainly  take  pleas- 
ure in  them."19 

is  Marshal  Saxe,  Memoirs  upon  the  Art  of  War,  p.  94-97. 


tX/ 


46  WARS  OF   TR1NCES. 

Requisitions  older  than  Washington. — It  has  sometimes 
been  claimed  that  Washington  was  the  first  to  make  use 
of  requisitions.  The  above  passage  and  other  passages  from 
the  Memoirs  of  Marshal  Saxe  show  that  this  could  not  have 
been  so,  but  that  contributions  included  contributions  in 
kind  as  well  as  money. 

Dislike  for  irregular  troops. — The  dislike  for  irregular 
troops,  which  has  been  shown  in  all  ages  by  military  com- 
manders, was  especially  manifested  during  this  period.  In 
a  cartel  for  the  exchange  of  prisoners  entered  into  between 
the  Emperor  Leopold  and  Louis  XIV  on  May  2,  1692,  it 
was  agreed  that  bodies  of  less  than  fifteen  horse  or  nine- 
teen foot  should  not  be  allowed  to  go  against  the  enenry 
without  officers  on  pain  of  being  treated  as  robbers  ;20  and 
such  an  agreement  was  not  uncommon.  As  to  the  use  of 
militia,  Moser  says,  however,  that  sovereigns  did  not  hesi- 
tate to  condemn  and  punish  in  others  what  they  made  no 
Scruple  of  doing  themselves.21 

Dying  out  of  ransom. — The  practice  of  ransom  died  out 
in  the  eighteenth  century.  Hall  cites  the  cartel  of  1780 
between  France  and  England  as  the  last  instance  of  an 
agreement  fixing  the  rates  of  ransom  for  military  officers 
and  men,  and  states  that  "since  that  time  no  prisoners  have 
probably  been  ransomed  except  sailors  captured  in  mer- 
chant vessels  which  have  subsequently  been  released  under 
a  ransom  bill."22 

Increased  care  for  the  sick  and  wounded. — Beginning  with 
the  wars  of  Louis  XIY,  cartels  often  provided  for  the  re- 
lease of  the  medical  and  clerical  staff  and  often  of  other 
branches  of  the  noncombatant  service  without  ransom, 
long  before  the  practice  of  ransoming  had  been  aban- 
doned.23 Provision  was  also  made  that  money  expended 
for  the  care  of  the  sick  and  wounded  should  be  repaid.24 
A  notable  arrangement  was  that  entered  into  in  1759  be- 
tween Maria  Theresa  and  Frederick  the  Great,  in  which 
they  agreed  that  the  health  resorts  Landeck  and  Warm- 
brunn,  in  Silesia,  and  Teplitz  and  Carlsbad,  in  Bohemia, 

20Dumont,  Tome,  VII,  Part  II,  p.  315. 
2i  Moser,  Versuch,  IX,  p.  267. 

22  Hall,  Inter.  Law,  p.  428. 

23  Hall,  Inter.  Law,  p.  422:  and  see  Gurlt,  Krankenpfleg-e  im  Kriege. 
2*  Gurlt,  Ibid.,  p.   17,  et  seq. 


ROUSSEAU.  47 


should  be  safeguarded.25  ^Conventions  providing  for  spe- 
cial protection  to  the  sick  and  wounded  were  not  uncom- 
mon.-6 

Growth  of  an  effective  public  opinion. — While  instances 
of  cruelty  were  not  lacking,  the  following  quotation  from 
Vattel  in  reference  to  the  devastation  of  the  Palatinate  in 
1674  and  1689  shows  that  an  effective  public  opinion  had 
been  developed.  He  says:  "All  Europe  resounded  with 
invectives  and  reproaches  on  this  manner  of  making  war. 
The  court  vainly  covered  it  with  the  design  of  securing  its 
frontiers.  This  was  an  end  which  could  be  little  answered 
by  laying  waste  the  Palatinate.  It  was  well  known  to  be 
the  revenge  and  cruelty  of  a  haughty  and  implacable  min- 
ister."27 

Vattel  and  Rousseau  on  the  warfare  of  their  time. — Such 
incidents  seem  to  have  been  exceptional.  Vattel,  writing 
in  1758,  eulogizes  the  conduct  of  warfare  in  his  time  in 
words  which  contrast  vividly  with  those  used  by  Grotius 
a  century  and  a  quarter  before.  In  one  passage,  remark- 
able for  its  likeness  to  the  famous  passage  of  Rousseau 
written  four  years  later,  Vattel  says:  "It  is  against  one 
sovereign  that  another  makes  war  and  not  against  the 
quiet  subjects.  The  conqueror  lays  his  hands  on  the  pos- 
sessions of  the  state,  on  what  belongs  to  the  public,  while 
private  persons  are  permitted  to  retain  theirs.  They  suf- 
fer but  indirectly  by  the  war;  and  to  them  the  result  is 
that  they  only  change  masters."28  The  words  of  Rousseau 
are:  "War,  then,  is  not  a  relation  of  man  to  man,  but  a 
relation  of  state  to  state,  in  which  individuals  are  enemies, 
only  accidentally,  not  as  men,  nor  even  as  citizens,  but  as 
soldiers;  not  as  members  of  the  country,  but  as  its  defend- 
ers. FinallyJ._eaiih  state  can  have  for  its  enemies  only  other 
states  and  not  men,  seeing  that  between  things  of  a  diverse 
nature  no  true  relation  can  be  fixed."29 

The  statements  of  both  were  rough  generalizations  of  the 
practice  of  their  time. — Vattel  was  without  question  merely 
generalizing  the  practice  of  his  time.     He  was  not  laying 

25  Ibid.,  p.  113,  et  seq. 

26  Ibid.,  p.  101,  et  seq. 

27  Vattel,  Bk.  Ill,  Chap.  IX,  §   167. 

28  Vattel,  Bk.  Ill,  Chap.  XIII.  §  200. 

29  J.  J.  Rousseau,   Du  Contrat   Social,  L.   I,  Chap.  IV. 


48  WARS   OF   PRINCES. 

down  a  philosophical  principle  which  should  serve  as  a 
basis  for  a  law  of  war;  nor  did  Rousseau  consider  himself 
to  be  laying  down  a  principle  which  might  in  the  future 
become  a  living  principle  of  that  law;  for,  after  the  pas- 
sage that  has  just  been  quoted,  he  goes  on  to  say  that  this 
principle  is  conformable  to  the  practice  of  all  civilized  na- 
tions. He  was  merely  drawing  an  argument  against  slavery 
from  the  practice  of  his  times,  and  was  evidently  not  con- 
scious of  what  bearing  it  would  have  if  applied  in  detail 
to  the  varied  incidents  of  war. 

Vattel. — Of  Vattel  a  few  words  must  be  said ;  and  they 
cannot  be  better  said  than  in  the  language  of  Prof.  West- 
lake.  "Vattel,"  says  Westlake,  "was  a  native  of  the  prin- 
cipality of  Neuchatel,  then  belonging  to  the  king  of  Prus- 
sia, but  served  the  elector-king,  elector  of  Saxony  and 
king  of  Poland,  successively,  as  conseiller  d'ambassade,  min- 
ister in  Switzerland,  and  conseiller  prive  du  cabinet.  JELis — 
pjfamous  work  was  published  in  1758.,  under  the  title  of 
Le  Droit  des  Gens,  ou  principes  do  la  loi  naturelle  appliques 
a  la  conduite  et  aux  affaires  des  nations  et  des  souverainsj  Its 
philosophical  principles  are  those  of  Wolff,  of  whom  Vattel 
was  a  great  though  not  a  servile  admirer,  but  its  chief 
merit  is  on  the  practical  side.  It  presents .-the- law— of— na- 
tions as  it  then  stood  with  a  fulness  of  which  there  had 
been  no  previous  example,  including  the  topics  which  had 
grown  up  since  the  time  of  Grotius  or  on  which  Groti.us 
had  not  dwelt,  and  on  which  Wolff  had  had  little  or  noth- 
ing to  say;  and  it  does  so  from  the  point  of  view  of  a 
man  versed  in  affairs,  familiar  with  the  customs  which  had 
been  taking  shape  since  tha-Peace  of  Westphalia,  and  duly 
appreciating  their  value.  |_Iis  reputation  was  therefore  as 
well  deserved  as  it  was  immediate,  and  it  must  remain  of 
lasting  importance  in  the  study  of  international  law,  as  the 
focus  in  which  the  schools  of  reason  and  custom  were  first 
brought  together,  and  from  which  the  succeeding  diverg- 
ences may  be  traced.^50 

Bynkershoek. — la^striking  contrast  to  the  fascinating 
Vattel  was  the  mercilessly  legal  Bynkershoek,  who  pre- 
ceded him  by  only  a  few  years.  Bynkershoek  was  a  Dutch 
lawyer  and  jurist,  and  was  president  of  the  High  Council 
of  Holland.     His  most  important  work  on  public  law,  of 

so  Westlako.   Principles,  p.   76. 


BYNKERSHOEK.  49 

which  his  Law  of  War  was  a  part,  was  published  in  1737. 
He  was  one  of  the  clearest  thinkers  who  have  ever  writ- 
ten on  the  laws  of  war,  and  his  opinions  on  maritime  war- 
fare havB-Jiaii  great  inflrieTip.ft  on  the  British  Admiralty 
Courts ;  but  his  cruel  logic  shows  the  great  danger  to  Which " 
men  removed  from  the  actualities  of  war  are  liable.  Prof. 
Nys  declares  that  none  even  of  the  precursors  of  Grotius 
was  as  pitiless  as  By^kershoek^1 

si  Nys,   Origines,  etc.,   p.    193. 


50  THE   RE  VOLUTION  Alt  Y   AND   NAPOLEONIC   STRUGGLES. 


CHAPTER  V. 

THE  REVOLUTIONARY  AND  NAPOLEONIC  STRUGGLES. 

The  change  from  wars  of  princes  to  wars  of  peoples. — 

The  wars  of  which  Vattel  and  Rousseau  wrote  were  wars 
of  princes.  Except  at  sea,  they  were  almost  all  that  those 
who  make  the  words  of  Rousseau  their  creed  could  de- 
sire. Probably  at  no  other  time  had  guerilla  fighting  been 
so  scarce,  or  had  private  persons  suffered  less  from  the 
burdens  of  war.  But,  in  making  the  statements  above 
quoted,  Vattel  and  Rousseau  were  historians  rather  than 
prophets.  The  next  war  of  importance  to  follow  the  pub- 
lication of  Rousseau's  work  was  that  for  American  Inde- 
pendence; and  there  have  been  few  wars  since  but  have 
been  strongly  tinged  by  popular  sentiment.  With  strong 
popular  sentiment  irregular  fighting  has  been  frequent,  and 
with  the  great  national  armies,  the  burdens  of  private  in- 
dividuals have  been  increased  many  fold. 

Rules  said  to  have  been  laid  down  by  Great  Britain  in 
the  war  for  American  Independence. — In  the  "War  for 
American  Independence,  G.  F.  de  Martens  says  that  Great 
Britain  promulgated  the  following  rules  as  recognized  laws 
of  war:  "First,  an  army  which  occupies  the  country  of 
an  enemy  may  demand  provisions  there  and  levy  contribu- 
tions and  to  force  the  inhabitants  to  satisfy  these  demands, 
may  resort  to  military  execution,  that  is,  ravage  and  de- 
struction; second,  when  the  enemy,  being  in  his  own  coun- 
try, finds  it  to  his  advantage  to  prolong  the  war  and  evade 
coming  to  action,  it  is  permissible  to  ravage  the  country 
in  his  presence,  to  make  him  expose  himself  in  attempting 
to  protect  the  country;  third,  when,  in  war,  one  is  not  able 
to  destroy  the  adverse  party  or  to  lead  him  to  reason  with- 
out reducing  his  country  to  distress,  it  is  permitted  to  carry 
distress  into  his  country;  fourth,  when  the  inhabitants  are 
themselves  the  principal  parties  to  the  war,  which  happens 
in  the  case  of  a  revolt  or  of  a  rebellion,  they  are  them- 
selves  the   principal    objects   of   hostilities,   which   one   is 


HANGING  OF  ANDK'K.  51 

under  the  necessity   of   directing  against   them  to   attain 
the  end  of  the  war."1 

Probably  no  public  declaration  of  these  rules. — Just  in 
what  way  these  principles  were  announced  by  the  British 
Government  is  not  Stated.  There  was  probably  no  public 
announcement,  or  it  would  have  been  noticed  in  the  debates 
in  Parliament  where  the  whole  conduct  of  the  war  was  so 
vigilantly  scrutinized.  Possibly  they  were  generalizations 
drawn  from  the  apparent  mode  of  its  conduct. 

The  employment  of  Indian  allies  and  the  confinement  of 
prisoners  of  war  in  prison  ships. — The  excesses  of  the  In- 
dian allies  of  Great  Britain  during  the  war  caused  the 
famous  protest  of  Lord  Chatham  against  their  use;2  and" 
this  example  has  ever  since  led  publicists  and  statesmen 
to  denounce  the  employment  in  war  of  peoples  of  a  lower 
civilization  whose  manner  of  life  makes  it  improbable  that  / 
they  will  follow  the  rules  of  civilized  warfare,  ^he  confine- 
ment of  prisoners  of  war  in  prison  ships,  in  tins  and  the 
Napoleonic  wars,  also  led  to  grave  abuses  against  which 
The  Hague  Regulations  provideTH 

The  hanging  of  Major  Andrei — The  hanging  of  Major 
Andre  as  a  spy  has  been  characterized  by  Sir  Robert  Phil- 
limore  as  a  blot  on  the  escutcheon  of  Washington,3  but  the 
characterization  is  not  justified.  Major  Andre's  excuse  for 
himself  was  that  he  was  "betrayed"*  (being  adjutant  general 
of  the  British  army)  "into  the  vile  condition  of  an  enemy 
in  disguise  within  your  posts."5  When  captured  he  had 
not  regained  his  own  lines  and  had  on  his  person  intelli- 
gence as  to  the  forces,  ordnance  and  works  at  West  Point. 
There  seemed  to  be  in  his  own  mind  no  question  that  he 
was  technically  in  the  position  of  a  spy.  The  only  plea 
that  his  friends  made  for  him  was  that  he  had  landed 
under  a  flag  of  truce.  If  this  had  been  true,  as  it  seems 
not  to  have  been,  his  assumption  of  a  disguise  within  the 
lines  would  have  placed  him  in  the  same  position  as  if  he 
had  been  disguised  from  the  first.  However  much  com- 
passion we  may  feel  for  him,  the  fact  of  his  having  been 

i  Martens,  Precis  du  Droit  des  gens,  Bk.  VIII,  Chap.  IV,  §  280. 

2  Hansard's   Pari.   Debates,  Vol.   XIX,   487-489. 

3  Phillimore,  Int.  Law,  Vol.  Ill,  p.   175. 
*  The  italics  are  the  author's. 

s  Minutes  of  a  Court  of  Inquiry  upon  the  case  of  Major  Andre,  p.  12. 


52  THE   REVOLUTIONARY  AND  NAPOLEONIC   STRUGGLES. 

betrayed  into  the  position  of  a  spy  does  not  make  his  hang- 
ing unjustifiable.  He  was  engaged  in  completing  arrange- 
ments for  the  subornation  of  a  prominent  American  officer 
and  the  betrayal  of  an  important  American  post.  The 
circumstances  as  a  whole,  instead  of  mitigating  the  situa- 
tion in  which  he  was  found,  distinctly  pointed  to  the  neces- 
sity of  making  his  fate  an  example  to  those  who  should  seek 
to  engage  in  similar  enterprises  in  the  future. 

Principal  effect  of  the  Revolutionary  and  Napoleonic 
Wars  on  the  Law  of  War  was  in  connection  with  the  Law 
of  Conquest. — Turning  again  to  the  shores  of  Europe,  we 
come  on  another  Revolutionary  War,  that  of  the  French. 
Its  principal  effect  on  the  law  of  war  between  belligerents 
was  in  connection  with  the  _Law  of  Conxmcst.  which  oc- 
cupied an  important  place  in  the  treatises  on  the  Law  of 
Nations  previous  to  the  French  Revolution,  a  place  which 
it  occupies  no  more.  The  questions  discussed  are  as  im- 
portant now  as  they  were  before,  but  they  are  now  treated 
under  the  head  of  Military  Occupation,  while  Conquest 
is  usually  confined  to  the  case  of  wars  ending  without 
treaties  of  peace,  either  through  the  subjugation  of  one 
/of  the  belligerents  or  the  mere  cessation  of  hostilities. 

The  old  doctrines  of  Conquest  and  Postliminium. — The 
old  doctrine  of  Conquest  was  that  territory  and  lands,  like 
other  forms  of  property,  passed  to  the  belligerent  who  had 
taken  them  securely  into  his  possession.  To  constitute  se- 
cure possession,  the  end  of  the  war  was  not  essential,  the 
most  common  test  of  firm  possession  being  that  the  terri- 
tory possessed  should  be  so  guarded  by  permanent  forti- 
fications as  to  necessitate  taking  them  to  repossess  the 
land.6  Thus  far  the  rules  as  to  the  taking  of  all  kinds  of 
property  were  alike.  "With  regard  to  territory  and  land, 
however,  the  theory  of  conquest  was  profoundly  modified 
by  the  doctrine  of  Postliminium,  which  was  based  on  the 
old  Roman  doctrine  from  which  it  derived  its  name.  Ac- 
cording to  the  doctrine  of  Postliminium,  the  recovery  of 
territory  before  the '  conclusion  of  peace,  or  its  reconvey- 
ance under  the  treaty  of  peace,  reestablished  as  far  as  pos- 
sible the  legal  and  political  relations  existing  before  the 
conquest.  Grants  of  land  made  in  the  meantime  were  ren- 
dered null;  debts  discharged  by  the  conqueror  were  re- 

« Grotius,  III,  6,  41 ;   Bynkershoek,  p.  45. 


CONQUEST  AND  POSTLIMINIUM.  53 

vived,  except  insofar  as  there  had  been  actual  compulsory 
payment ;  and  in  general  the  condition  of  things  preceding 
the  conquest  was  restored.  Furthermore,  it  was  immaterial 
whether  it  was  the  subject  of  an  enemy  who  had  benefited 
in  the  meantime,  or  the  subject  of  a  neutral  power,  or  even 
a  neutral  power  itself.  An  enemy  or  the  subject  of  an 
enemy  could  give  no  better  right  than  he  himself  had,  and 
the  right  he  had  in  the  property  taken  was  subject  to  the 
right  of  the  enemy  to  retake  it  at  any  time  before  the  con- 
clusion of  hostilities.  This  right  to  retake  territory  and 
lands  was  a  different  right  from  that  to  retake  movables. 
They  in  general  became  the  absolute  property  of  the  captor 
and  could  be  disposed  of  in  the  same  way  as  property  orig- 
inally his.  A  third  party  got  good  title  to  them,  even  as 
against  the  original  owner,  and  his  acceptance  of  them 
involved  no  breach  of  his  neutrality.  But  the  acceptance 
of  conquered  territory  during  war  was  a  different  matter. 
It  involved  cooperation  with  the  conqueror,  in  depriving 
the  -original  holder  of  his  property  and  so  was  a  dis- 
tinctly hostile  act.  In  the  few  cases  where  conquered  ter- 
ritory was  transferred  before  the  conquest  had  been  con- 
firmed by  a  treaty  of  peace,  war  actually  followed,  or  it 
was  expected  at  the  time  of  the  transfer  that  it  would. 

The  doctrine  of  Postliminium  prevented  the  conqueror 
becoming  the  definitive  owner  of  territory  seized  by  him 
till  the  conclusion  of  hostilities. — So  far  as  the  alienation 
of  conquered  territory  went,  then  the  conqueror  was  not 
its  definitive  owner  till  the  conclusion  of  hostilities.  He 
had  merely  a  possessory  right,  good  as  against  third  par- 
ties. This  was  early  recognized  by  th&  jurists.  Pufendorf 
said:  "It  is  to  be  observed  that  the  Right  to  Acquisitions 
of  War  is  of  Force  only  against  any  third  disinterested 
Party.  But  to  give  the  Conqueror  a  Right  of  Propriety 
that  will  hold  good  against  the  Conquered  there  must  of 
Necessity  be  a  Pacification  and  Agreement  between  both 
the  parties,  otherwise  the  Right  is  supposed  to  continue 
still  in  the  old  Proprietor,  and  whenever  he  is  strong 
enough  he  may  justly  struggle  to  recover  it."7 

So  Vattel:  "Immovables,  lands,  towns,  provinces,  etc., 
pass  under  the  power  of  the  enemy  who  makes  himself 
master  of  them;  but  it  is  only  by  the  treaty  of  peace  or 

i  Pufendorf,  De  Jure  Naturae  et  Gentium,  VIII,  o.  20. 


54  THE  REVOLUTIONARY  AND   NAPOLEONIC   STRUGGLES. 

the  entire  submission  and  extinction  of  the  state,  to  which 
these  towns  and  provinces  belonged,  that  the  acquisition 
is  completed,  and  the  property  becomes  stable  and  perfect. 

"Thus  a  third  party  cannot  safely  purchase  a  conquered 
place  or  province  till  the  sovereign  from  whom  it  was  taken 
lias  by  a  treaty  of  peace  renounced  it,  or  being  irrecover- 
ably reduced,  has  forfeited  its  sovereignty;  for  while  the 
war  continues,  while  the  sovereign  has  still  hopes  of  re- 
covering his  possessions  by  arms,  is  a  neutral  prince  to 
come  and  deprive  him  of  such  liberty  by  purchasing  of 
the  conqueror  this  place  or  province?  The  first  proprietor 
cannot  forfeit  his  rights  by  the  action  of  a  third  person, 
and  if  the  purchaser  is  for  maintaining  his  purchase,  he 
will  find  himself  engaged  in  a  war.  Thus  the  king  of  Prus- 
sia put  himself  among  the  enemies  of  Sweden,  by  receiving 
Stettin  from  the  hands  of  the  king  of  Poland  and  the  Czar, 
under  the  title  of  sequestration."8 

The  case  of  the  transfer  of  territory  seized  in  war  to  a 
third  party  before  the  conclusion  of  hostilities  seems  not 
to  have  occurred  to  Grotius. — This  solution  of  the  question 
as  to  territory  transferred  to  a  third  party  during  war  does 
not  appear  to  have  occurred  to  Grotius,  although  as  ar- 
rived at  by  his  successors,  it  would  seem  logically  to  fol- 
low from  what  he  laid  down  on  the  subject  of  Postlimin- 
ium.9 Perhaps  it  was  suggested  to  Puf'endorf  by  the  sale 
of  Dunkirk  by  Charles  II  to  Louis  XIV  in  1662.10  Dunkirk 
had  been  taken  by  England  from  Spain  a  few  years  be- 
fore, but  the  death  of  Cromwell  had  prevented  the  con- 
clusion of  a  treaty  of  peace  confirming  the  English  pos- 
session ;  and  on  the  Restoration,  Spain  had  resumed  peaceful 
relations  with  England  with  only  a  formal  protest  against 
Dunkirk's  retention.11  In  the  treaty  of  sale,  however,  elab- 
orate provision  was  made  against  the  possible  attempt  of 
Spain  to  retake  the  place;12  and  oue  of  the  main  reasons 
given  for  Louis'  insistence  that  no  higher  price  should  be 
paid  was  the  imperfect  title  of  the  English,  resting  as  it 
did  on  the  Rights  of  Arms  alone,  ULfortified  by  Treaty.13 

sVattel,  Bk.  Ill,  Chap.  XIII,  §§  197,  198. 

9  Grotius,  III,  9,  6,  2. 

io  Comte  d'  Estrades,  Lettres,  Memoires  et  Negociations,  I,  346. 

li  The  Life  of  Edward,  Earl  of  Clarendon,  I,  p.  503,  et  seq. 

i2Dumont,  Tome  VI,  Part  II,  p.  432. 

13  Comte  d'Estrades,  Lettres,  etc.,  I,  346. 


CONQUEST  AND  POSTLIMINIUM.  55 

The  sale  attracted  a  great  deal  of  attention,  and  could 
hardly  have  failed  to  receive  the  careful  consideration  of 
Pufendorf.  Possibly,  if  a  similar  circumstance  had  occurred 
earlier,  it  would  have  called  Grotius'  attention  to  the  pos- 
sessory nature  of  the  right  of  the  conqueror  and  caused 
him  to  give  the  great  weight  of  his  authority  to  some 
doctrine  more  nearly  resembling  the  modern  doctrine  of 
Military  Occupation  than  did  the  doctrine  of  defeasible 
title,  which  he  taught. 

As  a  principle  of  property  law  the  doctrine  of  Conquest 
and  Postliminium  was  exceedingly  cumbersome. — In  the 
light  of  what  Pufendorf  and  Vattel  said,  it  would  seem 
strange  that  the  old  doctrine  of  defeasible  title  continued 
to  survive  but  for  the  fact  that  the  relation  of  the  con- 
queror to  the  inhabitants  was  involved  in  it,  as  well  as 
the  relation  of  the  conqueror  to  the  territory.  As  a  prin- 
ciple of  property  law,  it  was  bad;  but,  as  a  principle  re- 
quiring the  general  recognition  of  the  authority  of  the 
conqueror,  it  had  many  advantages. 

But  on  the  other  hand  it  supplied  the  need  for  some  rec- 
ognized authority  in  occupied  territory. — The  need  of  some 
recognized  authority  in  a  country  occupied  by  an  enemy 
is  apparent.  Without  authority  there  can  be  little  law, 
and  without  law  the  life  of  a  highly  developed  community 
must  be  paralyzed.  But,  the  recognition  of  authority  im- 
plies the  duty  of  obedience,  and  what  duty  of  obedience  is 
there  towards  an  enemy?  The  answer  is  by  no  means  easy. 
It  was  avoided  by  the  doctrine  of  defeasible  title,  for  with 
title  went  sovereignty,  and  with  sovereignty  protection; 
and,  in  return  for  protection,  the  inhabitants  owed  allegi- 
ance. The  whole  theory  was  simple  and  clear,  and,  as  it 
was  of  daily  use  in  making  plain  to  the  inhabitants  of 
conquered  territory  their  duty  to  the  conqueror,  while  on 
the  other  hand  the  alienation  of  conquered  territory  was 
exceedingly  rare,  it  is  not  surprising  that  the  doctrine  of 
defeasible  title  continued  to  be  maintained. 

The  change  of  allegiance  of  the  inhabitants  of  firmly  oc- 
cupied territory  during  war  was  well  settled. — The  doctrine 
that  allegiance  changed  on  conquest  and  that  conquest 
could  take  place  before  the  cessation  of  hostilities  was  well 
settled.  Thus,  Pothier,  writing  shortly  before  the  French 
Revolution,  affirmed  that  the  inhabitants  of  conquered  ter- 


56  THE  REVOLUTIONARY  AND  NAPOLEONIC   STRUGGLES. 

ritory  became  French  citizens  from  the  moment  of  con- 
quest, but  that  they  were  restored  to  the  condition  of  aliens 
by  the  handing  back  of  the  territory  by  the  treaty  of 
peace.14  This  doctrine  of  change  of  allegiance  had,  how- 
ever, certain  unfortunate  results.  It  sanctioned  both  the 
exaction  of  an  oath  of  allegiance  to  the  conqueror  and 
compulsory  service  in  his  army;  and  we  accordingly  find 
that  oaths  of  allegiance  and  military  service  both  were 
required  of  the  inhabitants  of  occupied  territory  during 
the  period  of  Frederick  the  Great.  These  things  seemed 
so  natural  to  G.  F.  de  Martens,  the  first  edition  of  whose 
work  appeared  in  1788,  that  he  referred  to  them  as  in- 
stances of  the  moderation  of  conquerors  rather  than  of 
their  severity.15 

Work  of  Prof.  Lameire. — Within  the  last  few  years  we 
have  had  the  privilege  of  observing  the  workings  of  the 
old  law  of  Conquest  in  great  detail  in  the  interesting  studies 
of  Irenee  Lameire,  Professor  of  the  History  of  Public  Law 
in  the  University  of  Lyons.  He  depreciates  the  practical 
importance  of  the  Law  of  Postliminium,  and  well  he  may 
in  the  fields  on  which  he  has  shed  so  much  light.  As 
between  the  conqueror  and  the  inhabitants  it  had  very 
little  application.  The  effects  of  conquest,  even  perfected 
by  treaty,  except  in  making  the  inhabitant's  the  subjects 
of  the  conqueror  and  as  such  liable  to  the  obligations  of 
subjects,  were  so  slight  in  the  eighteenth  century  that  Pro- 
fessor Lameire  is  continually  tempted  to  compare  them 
with  the  effects  of  military  occupation  in  the  nineteenth 
century,  much  to  the  advantage  of  the  former.  What  he 
fails  to  notice  is  that  the  doctrine  of  Postliminium  was 
essentially  a  doctrine  of  the  law  of  property  and  marked 
a  profound  difference  between  movables  and  immovables. 
Third  parties  could  get  good  title  to  the  former  during  war. 
They  could  not  to  the  latter. 

Causes  that  led  to  the  modern  doctrine  of  occupation. — 

..  Such   was   the   state   of   the   law   at  the   outbreak   of   the 

^French  Revolution.  /The  chief  causes  that  led  to  the  change 

in  the  law  were  the  aolhg  away  with  the  presumption  that 

a  belligerent  always  had  the  intention  to  appropriate  all 

i*  Pothier,  Traite  des  Personnes,  Titre  II,  Sec.   1. 
is  Martens'  Summary  of  the  Law  of  Nations,  Bk.  VIII,  Chap.  Ill, 
Sec.  8. 


CONQUEST  AND  POSTLIMINIUM.  57 

the  territory  lie  could  lay  his  hands  on,  and  the  clearer 
application  of  the  principle  of  the  de  facto  nature  of  the 
right  of  a  belligerent  to  seize  the  debts  of  the  subjects  of 
his  enemy  in  the  enemy's  country,  to  the  general  relations 
between  the  belligerents  and  the  occupied  country.  The 
former  was  due  to  the  disapproval  of  conquest  by  Rousseau 
and  others;  the  latter,  to  the  decision  reached  as  to  the 
confiscation  of  the  debts  of  the  Elector  of  Hesse-Cassel  by 
Napoleon. 

Under  the  old  doctrine  the  intention  to  appropriate  ter- 
ritory without  limit  had  been  presumed. — Under  the  doc- 
trine of  the  defeasible  title,  the  intention  to  appropriate 
territory  seized  was  always  presumed.  Bynkershoek  went 
so  far  as  to  say:  "The  intention  of  the  conqueror  is  not 
merely  to  invade  one  district,  but  the  whole  of  the  hostile 
empire,  and  to  make  his  own  all  the  countries  belonging 
to  it.  "1G  Practice  was  in  accord  with  this  view.  Princes 
desired  land,  as  they  did  other  property,  in  order  to  en- 
large their  estates;  and  it  mattered  little  whether  the  ter- 
ritory was  fitted  to  form  part  of  the  national  domain  or 
whether  the  inhabitants  were  fitted  to  become  members  of 
the  conquering  state. 

This  presumption  was  shattered  by  the  French  Revolu- 
tion.— This  presumption  the  French  Revolution  shattered. 
Pufendorf  and  Locke  had  already  preatrhed  the  doctrine 
that  might  could  not  make  right.  (Rousseau  followed 
them  and  burned  into  the  consciousness  of  the  French  na- 
tion the  fact  that  the  so-called  right  of  conquest  was  only 
the  law  of  the  strongest.)  The  revolutionary  leaders  pro- 
claimed this  view  with  characteristic  fervor  and  embodied 
a  renunciation  of  wars  of  conquest  in  the  Constitution  of 
1791.17  As  a  result  of  this  renunciation,  territory  which 
would  formerly  have  become  a  part,  of  France  by  the  fact 
of  seizure  did  not  become  so  until  definitely  incorporated. 

This  change  in  the  law  reflected  in  a  decision  of  the  Court 
of  Cassation  in  1818. — This  change  in  the  law  is  reflected 
in  a  decision  of  the  French  Court  of  Cassation  in  1818. 
A  person  was  held  for  trial  before  one  of  the  French 
courts  of  assize  for  the  assassination  of  a  Catalan,  in  Cata- 
lonia, Spain,  in  1811,  on  the  ground  that  as  Catalonia  was 

i6  Bynkershoek,  Law  of  War,  p.  48. 
it  Title  VI. 


58  THE   REVOLUTIONARY   AND   NAPOLEONIC   STRUGGLES. 

then  occupied  by  the  French  forces  and  administered  by 
French  authorities  it  was  to  be  considered  a  French  ter- 
ritory. The  Court  of  Cassation,  on  appeal,  rejected  this 
view,  holding  that  "this  occupation  and  this  administra- 
tion by  the  French  troops  and  authorities  had  not  com- 
municated to  the  inhabitants  of  Catalonia  the  title  of 
French,  nor  to  their  territory  the  quality  of  French  terri- 
tory; that  such  communication  could  only  have  resulted 
from  an  act  of  union  emanating  from  the  public  authority, 
which  act  had  never  existed."18  In  other  words,  the  law 
as  stated  by  Pothier,  had  been  reversed. 

The  confiscation  of  the  debts  and  domains  of  the  Elector 
of  Hesse-Cassel  by  Napoleon  gave  rise  to  a  decision  of  sim- 
ilar tenor  by  one  of  the  German  Universities. — Another 
influential  decision  of  the  same  tenor  was  rendered  by 
one  of  the  German  Universities,  on  the  question  of  the 
lawfulness  of  the  confiscation  of  certain  domains  and  debts 
of  the  Elector  of  Hesse-Cassel  by  Napoleon.  It  brought 
out,  more  clearly  than  had  hitherto  been  done,  the  pro- 
found modification  of  the  doctrine  of  Conquest  by  that  of 
Postliminium ;  distinguished  between  the  permanent  con- 
queror and  "the  mere  transient  conqueror;"  and  ascribed 
to  the  acts  of  the  latter  the  mere  de  facto  effect  which  had 
always  been  exemplified  in  the  confiscation  of  debts  in  ter- 
ritory the  title  to  which  had  not  been  perfected  by  the 
cessation  of  hostilities.  Confiscation  of  debts  by  "a  tran- 
sient conqueror"  had  always  been  considered  valid,  but 
only  to  the  extent  of  actual  payment  made  under  compul- 
sion. A  mere  release  of  the  debt,  which  would  have  been 
sufficient  if  the  conqueror  had  been  considered  the  legal 
successor  of  the  power  he  had  dispossessed,  was  always 
considered  a  nullity.  Bynkershoek,  the  great  expositor  of 
the  doctrine  of  defeasible  title,  was  led  by  this  considera- 
tion to  say  that  the  "occupation  which  is  had  in  war  con- 
sists more  in  fact  than  in  law."19 

In  accordance  with  this  principle,  the  German  University, 
which  delivered  the  final  judgment,  "rightly  said  that  the 
real  question  was,  whether  Napoleon  had,  or  had  not,  be- 
come the  true  creditor  of  the  Hesse-Cassel  funds.  They 
drew  a  broad  distinction  between  the  validity  of  acts  done 

is  Ortolan,  Diplomatic  de  la  Mer,  I,  291-292. 
is  Bynkershoek,  Law  of  War,  p.  56. 


CONQUEST  AND  POSTLJ  M1N  1  I'M.  59 

by  a  mere  transient  conqueror  and  acts  done  by  him  after 
the  kingdom  had  been  wholly  subdued,  and  the  subjects 
had  either  expressly  or  by  implication,  accepted  him  as 
their  ruler. 

"In  the  former  case  the  Conqueror's  right  was  confined 
to  the  effect  of  his  private  acts,  to  the  occupatio  bellica,  and 
required  actual  seizure  and  possession  for  its  valid  exercise. 

"In  the  latter  case  the  rights  and  title  of  the  Conqueror 
had  been  ratified  by  the  Public  Act  of  the  State."  Napo- 
leon's case,20  they  decided,  was  one  of  the  latter  kind. 

Changes  which  made  the  old  doctrine  of  defeasible  title 
unnatural  even  to  the  lay  mind. — These  two  decisions 
brought  with  great  clearness  to  the  juristic  mind  the  es- 
sentially temporary  and  provisional  character  of  the  right 
of  a  belligerent  during  hostilities  over  occupied  territory. 
But  there  were  yet  other  forces  at  work  that  made  the  pas- 
sage of  title  during  war  seem  unnatural  and  odious  even 
to  the  lay  mind,  and  these  were  (1)  the  change  in  the  con- 
ditions of  warfare  and  (2)  the  growth  of  national  sentiment. 

The  change  in  military  science. — Warfare  itself  had 
changed.  The  immense  armies  of  the  Revolution  rendered 
it  possible  to  strike  blows  directly  at  the  source  of  the 
enemy's  power  and  to  dictate  terms  of  peace  at  his  capital. 
This  made  the  terms  of  peace  all-important  and  the  mili- 
tary events  important  only  as  leading  up  to  them,  whereas 
formerly  the  treaty  of  peace  had  been  important  mainly 
as  confirming  the  changes  brought  about  by  the  war  itself. 
The  object  of  campaigns  had  been  the  seizure  of  small 
coveted  provinces,21  and  once  taken  they  were  not  liable  to 
be  retaken  or  restored,  gut,  henceforth,  what  was  taken 
was  not  so  important  as  what  was  retained^  Whole  coun- 
tries passed  under  the  control  of  the  French  armies,  to  be 
handed  back  by  the  treaty  of  peace,  so  that  it  became  more 
natural  to  treat  military  occupation  as  effecting  a  temporary 
change  which  might  become  permanent  than  as  effecting 
a  permanent  change  which  events  might  prove  to  be  only 
temporary. 

The  growth  of  national  sentiment. — The  growth  of  na- 
tional sentiment  had  a  similar  effect.  No  matter  how  sat- 
isfactory in  theory  may  have  been  the  old  doctrine  that 

20  Phillimore,  Inter.  Law,  III,  846. 
2i  Jomini,  Art  of  War,  p.  150. 


60  THE  REVOLUTIONARY   AND  NAPOLEONIC   STRUGGLES. 

the  conqueror  had  the  right  to  require  an  oath  of  allegi- 
ance and  military  service  from  the  conquered,  it  must  al- 
ways have  been  galling  to  the  loyal  subject  of  a  worthy 
sovereign,  and  it  became  absolutely  intolerable  when  con- 
ceptions of  voluntary  allegiance  and  national  patriotism, 
took  the  place  of  the  old  feudal  ideas  of  reciprocal  pro- 
tection and  obedience.  The  individual  was  no  longer  the 
involuntary  subject  of  the  lord  of  the  soil.  His  loyalty 
was  based  on  an  intelligent  and  voluntary  adherence  to  a 
fatherland,  of  which  he  was  a  member,  and  to  which  he 
was  attached  by  all  the  ties  of  kinship,  language  and  as- 
sociation. This  new  patriotism  was  perhaps  never  higher 
than  at  the  close  of  the  Napoleonic  wars.  It  made  the  con- 
tinuance of  the  old  doctrine  as  to  the  rights  of  the  con- 
queror impossible,  and  rendered  inevitable  the  rule  which 
has  since  been  accepted  without  question,  that  as  long  as 
hostilities  last  it  is  illegal  to  demand  from  the  inhabitants 
of  occupied  territory  either  oaths  of  allegiance  or  military 
service. 

The  changes  find  scientific  expression  in  the  work  of 
.Heffter. — The  changes  in  conditions  and  in  thought  thus 
brought  about  found  scientific  expression  in  1844  in  the 
work  of  the  constructive  German  jurist,  Heffter,  who  dis- 
carded the  old  doctrine  of  Conquest,  and  demonstrated  the 
provisional  nature  of  the  rights  of  a  belligerent  over  occu- 
pied territory  till  the  conclusion  of  hostilities.22  Since  then, 
such  rights  have  been  classified  and  discussed  under  the 
technical  head  of  Military  Occupation,  which  has  come  to 
be  treated  more  and  more  in  detail,  while  Conquest  and 
Postliminium  have  sunk  to  a  position  of  insignificance. 
Conquests  are  still  effected,  but  only  where,  because  the 
enemy's  power  is  annihilated,  or  for  some  other  reason, 
hostilities  end  without  a  treaty  of  peace. 

Survival  of  the  old  doctrines  in  dicta  of  the  Supreme 
Court. — Traces  of  the  old  doctrine,  however,  survive  in 
dicta  of  the  Supreme  Court  in  the  cases  of  United  States  v. 
Rice23  and  Fleming  v.  Page.2*  The  actual  decision  in  neither 
case  can  be  shaken;  but  in  the  former  case  Mr.  Justice 
Story,  in  discussing  the  subject  of  Conquest,  made  certain 

22  Heffter,  Le  Droit  Inter.   Public,   Sees.    132-133. 

23  4  Wheaton,  246. 
2*9  Howard,  603. 


SEIZURE  OF   ART   TREASURES.  Gl 

sweeping  statements  which  left  out  of  account  the  essential 
limitations  imposed  on  conquest  by  the  law  of  Postliminium, 
and  these  statements  Chief  Justice  Taney  repeated  in  Flem- 
ing v.  Page.  But,  while  Chief  Justice  Taney  considered 
the  title  of  the  United  States  to  Tampico  to  be  good,  ac- 
cording to  the  law  of  nations,  in  consequence  of  the  mere 
occupation  of  the  place  by  the  American  forces,  yet  he 
rejected,  on  principles  of  constitutional  law,  the  contention 
that  it  had  become  American  territory.  The  modern  doc- 
trine had  been  stated  by  Chief  Justice  Marshall,  in  1828, 
in  the  case  of  the  American  Insurance  Company  v.  Canter, 
in  which  he  said:  "The  usage  of  the  world  is,  if  a  nation 
be  not  entirely  subdued,  to  consider  the  holding  of  con- 
quered territory  as  a  mere  military  occupation,  until  its 
fate  shall  be  determined  at  the  treaty  of  peace.  If  it  be 
ceded  by  the  treaty,  the  acquisition  is  confirmed,  and  the 
ceded  territory  becomes  a  part  of  "the  nation  to  which  it 
is  annexed."25 

Seizure  of  art  treasures — by  Napoleon. — The  influence  of 
France  on  the  change  from  the  doctrine  of  Conquest  to  that 
of  Military  Occupation  was  her  most  important  contribution 
to  the  law  of  war  between  belligerents  during  the  Revolu- 
tionary and  Napoleonic  Wars.  On  the  other  hand,  some 
of  Napoleon's  acts  tended  to  create  fixed  international  senti- 
ment by  the  disapprobation  they  provoked,  as  in  the  case 
of  his  seizure  of  art  treasures  of  the  different  countries 
which  he  occupied. 

Prior  to  Napoleon. — Prior  to  the  Renaissance  the  seizure 
of  art  treasures  by  the  various  Italian  cities  seems  not  to 
have  been  uncommon,  and  while  the  Renaissance  seems  to 
have  inaugurated  a  better  era  among  the  Italians  them- 
selves,26 its  effect  was  not  so  marked  or  at  least  was  felt 
later  in  the  conduct  of  the  earlier  French  invaders  of  Italy. 
Charles  VIII  and  Louis  XII  both  seized  notable  libraries, 
and  circumstances  alone  prevented  their  taking  other  treas- 
ures as  well.27  Francis  I,  however,  abstained  from  such 
action,  much  as  he  coveted  works  of  art,28  and  there  were 

25  1   Peters,  542. 

26  Eug.  Miintz,  Les  Annexions  de  Collections  d'Art  ou  de  Biblio- 
theques  et  Lenr  Role  dans  les  Relations  Internationales,  VIII  Revne 
d'Histoire  Diplomatique,  487. 

27  ibid.,  488. 

28  Ibid.,  492. 


Ov!  THE   REVOLUTIONARY   AND  NAPOLEONIC   STRUGGLES. 

few  subsequent  examples  of  the  seizure  of  art  treasures 
by  the  French  kings.29  A  notable  case  in  the  Thirty  Years' 
War  was  the  seizure  of  the  library  of  the  Elector  Palatine, 
in  1622,  and  the  subsequent  sending  of  the  books  to  Rome,30 
but  this  act  aroused  the  indignation  of  Gustavus  Adolphus, 
and  was  made  the  subject  of  reprisals  in  kind  by  him.31 
During  the  eighteenth  century  the  spoliation  of  art  muse- 
ums and  libraries  had  fallen  into  desuetude.32  The  public 
archives  were  not  always  safe,  especially  where  a  claimant 
to  a  disputed  province  wished  to  secure  his  position  by  deeds 
.of  title.  Professor  Nys  gives  two  instances  of  the  seizure 
'of  title  deeds  and  similar  documents,  one  by  Louis  XIV,  in 
1678,  the  other  by  his  successor,  in  1747,33  but  in  each  case 
the  seizure  was  contrary  to  express  stipulations  in  capitula- 
tions and  can  hardly  be  given  as  instances  of  what  was 
then  considered  correct  practice. 

Heavy  burden  of  Napoleon's  armies. — During  the  days  of 
the  French  convention,  the  war  threatened  to  take  on  the 
bloody  aspect  of  the  Reign  of  Terror,  but,  says  Mountague 
Bernard,  "the  sanguinary  decrees  of  the  Convention,  which 
directed  that  no  quarter  should  be  given  to  English  or  Han- 
overians and  that  neutral  sailors  found  on  board  of  British 
ships  should  be  put  to  the  sword,  were  execrated  and  dis- 
obeyed."34 Perhaps  the  heaviest  burden  of  the  subsequent 
war  was  due  to  the  extended  use  of  requisitions  to  support 
the  immense  forces  which  Napoleon  kept  under  arms. 
They  were  largely  responsible  for  the  uprisings  that  caused 
his  downfall. 

Burning  of  the  public  buildings  at  Washington. — In  this 
relation,  the  incident  of  chief  importance  in  the  war  of 
1812,  between  Great  Britain  and  the  United  States,  was  the 
burning  of  the  public  buildings  at  Washington.  Otherwise, 
especially  in  the  respect  shown  for  private  property,  the 
conduct  of  the  British  commanders  was  generally  com- 
mendable, and  it  is  hard  to  determine  on  just  what  prin- 
ciple they  acted  at  Washington.    Admiral  Cockburn,  in  his 

29  Ibid..  494. 

so  Ibid. 

3i  Harte,  II  Gustavus  Adolphus,  65. 

32Miintz,  IX  E.  H.  D.,  375. 

33  III  Nys,  314. 

34  Bernard,  the  Growth  of  Laws  and  Usages  of  War,  p.  112  and  p. 
134. 


BURNING   OF   THE    CAPITOL.  63 

report,  excused  the  burning  of  the  Capitol  as  an  act  of 
reprisal  for  shots  fired  from  it,33  but  General  Ross  made 
no  such  explanation,36  and  for  the  burning  of  the  public 
buildings  other  than  the  Capitol  no  excuse  at  all  was  of- 
fered. Afterwards,  when  the  burning  of  the  buildings  had 
been  the  subject  of  so  much  censure,  the  attempt  was  made 
to  justify  it  as  an  act  of  retaliation  for  the  alleged  burning 
of  the  public  buildings  at  York  (now  Toronto)  by  the  Amer- 
icans earlier  in  the  war;  but  there  was  clearly  no  such 
idea  in  the  mind  of  either  Admiral  Cockburn  or  General 
Ross  at  the  time.  That  old  score  had  been  wiped  out,  and 
the  reprisals  which  Admiral  Cochrane  threatened  to  make 
soon  afterwards  were  for  an  entirely  different  cause.37  The 
orders  that  Admiral  Cochrane  issued  were  directed  to  the 
naval  forces  alone,  and  had  nothing  to  do  with  the  expedi- 
tion against  Washington  under  General  Ross.38  The  burn- 
ing of  the  buildings  was  almost  universally  condemned,  and 
there  has  since  been  no  question  that  the  rights  of  a  bel- 
ligerent over  the  nonmilitary  immovable  property  of  his 
enemy  do  not  extend  to  its  destruction.  In  considering 
the  burning  of  Washington,  however,  it  is  only  fair  to 
mention  the  remark  of  an  English  writer,  that  the  public 
buildings  at  that  time  were  comparatively  insignificant,  the 
Capitol  being  the  only  one  of  any  considerable  architectural 
pretension.39 

ss  James,  History  of  the  War  in  America,  II,  494. 

^Ibid.,  p.  497. 

37  Henry  Adams,  History  of  the  United  States,  IX,  125. 

mibid.,  p.  128. 

39  Gleig,  Campaigns  at  Washington,  p.  138. 


64      PERIOD  OF  PEACE  AND  DECLARATION  OF  PARIS. 


CHAPTER  VI. 

THE   PERIOD   OF   PEACE   AND   THE    DECLARATION    OF   PARIS. 

Changes  wrought  during  the  period  of  peace. — The  ex-^ 

hausting  wars  of  the  Napoleonic  period  were  succeeded  by 
almost  forty  years  of  peace.  The  great  inventions  were 
followed  by  an  industrial  revolution,  and  this,  with  the 
spread  of  the  doctrines  of  free  trade  and  the  brotherhood 
of  man,  led  to  ideas  of  a  world-economy  and  world-peace 
that  found  expression  in  the  great  International  Exposition 
of  1851.  The  condition  of  society  at  that  time  was  well 
described  by  Mountague  Bernard,  who,  writing  in  1856, 
said: 

"Forty  years  of  peace,  during  which  the  inventive  and 
constructive  faculties  have  been  stimulated  to  the  utmost, 
have  altered  the  face  of  society,  and  the  change  has  been 
such  as  to  make  the  contrast  sharper  and  the  plunge  more 
abrupt.  We  live  in  times  not  of  excessive  luxury,  but  of 
elaborate  comfort  and  ease,  of  order  in  things  great  and 
small,  of  vast  mechanical  enterprises,  diffused  though  su- 
perficial knowledge,  fluent  benevolence,  and  tolerably  ac- 
tive charity.  We  have  attained  remarkable  success  in  avoid- 
ing and  putting  out  of  sight  all  that  would  hurt  the  bodily 
senses  or  distress  the  mind.  The  current  of  thought  among 
good  men  and  their  disciples  and  imitators  sets  in  the  di- 
rection of  social  improvement.  The  prejudices  and  anti- 
pathies of  race  are  smoothed  down,  the  ties  of  country  and 
of  home  weakened ;  and  we  have  accustomed  ourselves  to 
divide  society  into  classes  rather  than  into  peoples,  and  to 
study  the  component  strata  more  than  the  superficial  plan. 
At  the  same  time  the  extension  of  trade  has  knit  closer  the 
mutual  dependence  of  nations,  so  that  the  stoppage  of  a 
single  avenue  of  intercourse,  the  smallest  rise  in  the  price 
of  any  necessary  article,  is  felt  with  electric  rapidity  in 
places  most  remote  from  each  other.  As  all  these  things 
seemed  to  remove  indefinitely  the  danger  of  war,  so  it  was 
reasonable  to  expect  that  they  would  modify  its  character 
when  it  came."1 

1  Bernard,  The  Growth  of  Laws  and  Usages  of  War,  p.  88. 


DECLARATION  OF  PARIS.  65 

Find  expression  in  the  Declaration  of  Paris. — And  so 

they  did.  The  desire  for  improvement  found  expres- 
sion in  the  four  articles  of  the  Declaration  of  Paris 
of  1856,  which  embodied  the  principles  which  the  allied 
powers  had  followed  during  the  war  with  Russia.  They 
mark  the  most  important  modification  of  the  laws  of  war 
that  has  ever  resulted  from  convention.     The  four  articles 

1.  Privateering  is  and  remains  abolished. 

2.  The  neutral  flag  covers  enemy's  goods,  with  the  exception 
of  contraband  of  war. 

3.  Neutral  goods,  with  the  exception  of  contraband  of  war, 
are  not  liable  to  capture  under  the  enemy's  flag. 

4.  Blockades  in  order  to  be  binding,  must  be  effective,  that  is 
to  say,  must  be  maintained  by  a  force  sufficient  really  to  prevent 
access  to  the  coast  of  the  enemy. 

The  last  three  articles  concern  neutrals  primarily;  but 
the  relation  of  the  second  to  the  general  abolition  of  the 
capture  of  private  property  at  sea,  as  well  as  the  insistence 
of  Great  Britain  that  the  first  and  second  articles  should 
only  be  considered  together,  necessitates  the  examination 
of  the  Declaration  as  a  whole,  and  of  the  first  two  articles 
in  particular,  in  some  detail. 

The  Congress  of  Paris. — The  Declaration  was  the  work 
of  the  Congress  of  Paris,  composed  of  representatives  of 
Austria,  France,  Great  Britain,  Prussia,  Russia,  Sardinia, 
and  Turkey,  who  had  assembled  to  arrange  terms  of  peace 
at  the  end  of  the  Crimean  War.  Count  Walewski,  the 
French  representative,  considered  the  time  opportune  for 
a  declaration  of  principles  of  maritime  warfare,  and  on 
April  8,  1856,  proposed  the  four  articles  above  mentioned.2 
Lord  Clarendon  immediately  announced  the  willingness  of 
the  British  Government  to  accept  them,  on  condition  that 
the  first  two  articles  should  be  inseparable;3  and  at  the 
following  meeting  of  the  Congress  the  other  representatives 
announced  the  adhesion  of  their  governments.4  On  April 
16,  the  representatives  of  all  the  seven  powers  signed  the 
Declaration,  with  the  understanding  that  no  signatory  or 
adhering  government  should  ever  enter  into  an  arrangement. 

~  British  and   Foreign  State  Papers,  Vol.   XLVI,  p.   125. 
3  Ibid.,  p.   128. 
*  Ibid.,  p.  133. 

5 


66      PERIOD  OF  PEACE  AND  DECLARATION  OF  PARIS. 

involving  the  rights  of  neutrals,  that  did  not  rest  on  all 
the  four  principles.5 

The  change  in  the  attitude  of  Great  Britain. — The  Decla- 
ration marked  a  revolution  in  the  maritime  policy  of  Great 
Britain.  Hitherto,  she  had  insisted  on  her  right  to  seize 
enemy  property  on  the  high  seas,  whether  found  in  neutral 
bottoms  or  not,  and  had  combated  the  doctrine  of  free  ships, 
free  goods,  as  designed  to  cripple  her  power  at  sea  by  al- 
lowing enemy  commerce  to  be  carried  on  in  neutral  bot- 
toms without  molestation.  Therefore,  in  adopting  the  sec- 
ond article,  she  accepted  the  very  principle  which  she  had 
so  long  opposed.  The  reason  for  the  change  of  policy  was 
explained  in  Parliament  by  Lord  Clarendon,  who,  while 
holding  the  post  of  Secretary  of  State  for  Foreign  Affairs, 
had  represented  his  government  at  the  Congress.  "It  was 
evidently  impossible,"  declared  his  Lordship,  "that  we 
should  revert  to  our  former  policy — the  great  changes  which 
had  taken  place  in  our  commercial  policy  forbade  that  we 
should  ever  have  recourse  to  that  policy  again.  The  Gov- 
ernment therefore  thought  that  it  would  be  wise  and  politic 
and  expedient  that  when  we  were  under  no  compulsion  and 
our  motives  could  not  be  misunderstood,  we  should  make 
the  declaration  we  have  made,  that  we  will  not  recede  but 
will  abide  by  what  we  have  done  in  the  hope  that  we  should 
thereby  mitigate  the  evils  of  war  and  produce  a  friendly 
feeling  among  the  nations  of  the  earth."6 

At  another  time  he  said : 

"It  has  been,  and  still  is,  the  great  object  of  modern 
civilization  to  mitigate  the  miseries  of  war,  and  to  define 
and  extend  the  rights  of  neutrals.  This  has  been  done  with 
respect  to  war  by  land,  but  not  with  respect  to  war  by 
sea.  By  land  we  should  think  it  disgraceful  to  seize  the 
property  of  neutral  and  peaceful  persons  even  subjects  of 
the  enemy ;  but  that  is  not  the  case  by  sea ;  and  we  even 
give  licenses  to  buccaneers  to  seize  the  property  of  peaceful 
merchants  on  the  ocean.  There  is  no  assignable  reason 
for  this  difference,  except,  perhaps,  that  the  acts  commit- 
ted by  sea  are  less  under  observation  than  those  committed 
on  land,   and  the   force   of   opinion   is,   consequently,   less 

5  Ibid.,  p.  137. 

6  Hansard's  Parliamentary  Debates,  Third  Series,  Vol.  CXLII,  col- 
umn 498. 


DECLARATION   OF   PARIS.  67 

brought  to  bear  on  the  former.  The  present  state  of  the 
maritime  war  shows,  indeed,  but  little  improvement  upon 
the  customs  of  the  most  barbarous  ages."7 

England  was  acting  on  the  principle  that  the  capture 
of  private  property  at  sea  might  well  be  done  away  with 
altogether. — Evidently  the  British  government  was  acting 
on  the  belief  that  the  capture  of  private  property  at  sea 
might  well  be  done  away  with  altogether;  and  Lord  Pal- 
merston,  then  Prime  Minister,  even  expressed  himself  to 
that  effect  in  his  Liverpool  Address  of  November  7,  1856.8 

The  position  of  the  United  States. — The  United  States, 
with  other  nonsignatory  governments,  was  asked  to  accede 
to  the  Declaration.  Secretary  Marcy  expressed  the  willing- 
ness of  the  United  States  to  adhere,  but  only  on  condition 
that  the  first  article  be  so  amended  as  to  exempt  all  private 
property  at  sea  from  capture,  except  in  case  of  contraband 
or  of  blockade.  He  stated  that  the  United  States,  with 
her  small  regular  navy,  would  not 'feel  able  to  agree  to  the 
abolition  of  privateering,  unless  the  occasion  for  privateer- 
ing, the  capture  of  private  property  at  sea,  were  also  done 
away  with.9  The  success  of  this  proposal  seemed  likely. 
Lord  Palmerston  and  Lord  Clarendon  might  be  expected 
to  favor  it;  Russia  even  intimated  a  desire  to  take  the  in- 
itiative ;  and  France,  Piedmont  and  Holland  also  expressed 
their  approval;10  but,  before  the  proposed  amendment  was 
acted  on,  a  change  of  administration  placed  Mr.  Buchanan 
in  the  Presidential  chair,  and  the  negotiations  were  by 
him  suspended,  as  some  conjectured,  in  order  to  widen  the 
amendment  so  as  to  include  a  prohibition  of  commercial 
blockades.     But  the  negotiations  were,  in  fact,  dropped.11 

There  is  little  likelihood  that  even  the  nonsignatory  pow- 
ers will  fail  to  respect  all  the  rules  laid  down  in  the  Dec- 
laration.— Spain  and  Mexico  were  the  two  principal  pow- 
ers, besides  the  United  States,  to  withhold  their  adherence 
to  the  Declaration,  but  at  the  Second  Peace  Conference 
they  also  adhered.    In  the  wars  in  which  the  United  States 

7  Ibid.,  490. 

s  Aegidi  und  Klauhold-Frei  Sehiff  unter  Fcindes  Flagge,  p.  25. 

s  Mr.  Marcy  to  Count  de  Sartiges,  Sen.  Ex.  Doc,  104,  34th  Cong., 
1st  Sess. 

io  Laveleye  in  the  Revue  de  Droit  International  VII,  pp.  569-570. 

u  Stark,  The  Abolition  of  Privateering  and  The  Declaration  of 
Paris,  p.  151. 


68  PERIOD    OF    PEACE    AND    DECLARATION    OF    PARIS. 

is  engaged  the  Declaration  is  not  binding,  but,  as  to  the 
second,  third  and  fourth  articles,  this  fact  is  of  no  practical 
importance,  since  they  are  all  now  recognized  as  principles 
of  international  law.  The  question  of  privateering  is  more 
doubtful,  but  it  has  not  since  assumed  a  serious  practical 
aspect.  President  Lincoln  was  authorized  to  commission 
privateers  during  the  Civil  War,12  but  he  forbore  to  do  so; 
and  although  a  few  commissions  were  issued  by  the  Con- 
federacy, the  results  were  unimportant,  the  great  damage 
done  to  Northern  commerce  being  inflicted  by  the  regu- 
larly commissioned  Confederate  cruisers.13  On  the  out- 
break of  the  war  with  Spain,  the  United  States  declared 
it  to  be  her  policy  not  to  resort  to  privateering,  and  al- 
though Spain  reserved  the  right  to  do  so  she  did  not  after- 
wards avail  herself  of  the  reservation,14 

Early  efforts  to  secure  the  exemption  of  private  property 
at  sea  from  capture. — The  effort  made  in  connection  with 
the  Declaration  of  Paris  to  abolish  not  only  privateering 
but  also  the  capture  of  private  property  at  sea,  was  not 
wholly  new.  About  the  middle  of  the  eighteenth  century 
the  Abbe  Mably  had  lamented  the  difference  in  treatment 
of  private  property  at  sea  from  that  on  land15  and  towards 
the  end  of  the  century  the  distinguished  Italian  jurists, 
Galiani16   and   Azuni,17   had   followed   his   example. 

The  views  of  Benjamin  Franklin. — Similar  views  were 
held  by  Benjamin  Franklin,  and  he  sought  to  embody  them 
in  the  Treaty  of  Peace  of  1783  between  Great  Britain  and 
the  United  States.  In  a  letter  to  Richard  Oswald,  the 
British  Commissioner,  reducing  his  views  to  writing,  he 
said : 

"It  is  for  the  interest  of  humanity  in  general  that  the 
occasions  of  war  and  the  inducements  to  it  should  be  di- 
minished. 

"If  rapine  is  abolished,  one  of  the  encouragements  of 
war  is  taken  away,  and  peace  therefore  more  likely  to 
continue  and  be  lasting. 

12  Wharton,   Inter.   Law  Digest,   III,   p.  491. 
i"-  Dana's  Wheaton,  p.  456. 

i*  J.  B.  Moore — Maritime  Law  in  the  War  with  Spain — Naval  War 
College — Inter.  Law  Solutions,   1901 — pp.    150-151. 
is  Mably,  Le  Droit  Public  de  L'Europe,  II,  407. 

16  Galiani.  Recht  der  Neutralist    (trans.  Casar),  II,  218,  ct  seq. 

17  Azuni.   The  Maritime  Law  of  Europe,   II,   232. 


EXEMPTION    OF    PRIVATE   PROPERTY   AT   SEA.  69 

"The  practice  of  robbing  merchants  on  the  high  seas,  a 
remnant  of  the  ancient  piracy,  though  it  may  be  accident- 
ally beneficial  to  particular  persons,  is  far  from  being 
profitable  to  all  engaged  in  it,  or  to  the  nation  that  au- 
thorizes it.  In  the  beginning  of  a  war  some  rich  ships, 
not  upon  their  guard,  are  surprised  and  taken.  This  en- 
courages the  first  adventurers  to  fit  out  more  armed  vessels, 
and  many  others  to  do  the  same.  But  the  enemy  at  the 
same  time  become  more  careful,  arm  their  merchant  ships 
better,  and  render  them  not  so  easy  to  be  taken;  they  go 
also  more  under  protection  of  convoys ;  thus,  while  the 
privateers  to  take  them  are  multiplied,  the  vessels  subject 
to  be  taken;  and  the  chances  of  profit  are  diminished,  so 
that  many  cruises  are  made  wherein  the  expenses  overgo 
the  gains,  and,  as  is  the  case  in  other  lotteries,  though 
particulars  have  got  prizes,  the  mass  of  adventurers  are 
losers,  the  whole  expense  of  fitting  out  all  the  privateers, 
during  a  war,  being  much  greater  than  the  whole  amount 
of  goods  taken.  Then  there  is  the  national  loss  of  all  the 
labor  of  so  many  men  during  the  time  they  have  been 
employed  in  robbing;  who,  besides,  spend  what  they  get  in 
riot,  drunkenness  and  debauchery,  lose  their  habits  of  in- 
dustry, are  rarely  fit  for  any  sober  business  after  a  peace, 
and  serve  only  to  increase  the  number  of  highwaymen  and 
housebreakers.  Even  the  undertakers  who  have  been  for- 
tunate are  by  sudden  wealth  led  into  expensive  living, 
the  habit  of  which  continues  when  the  means  of  support- 
ing it  ceases,  and  finally  ruins  them;  a  just  punishment  for 
their  having  wantonly  and  unfeelingly  ruined  many  hon- 
est, innocent  traders  and  their  families,  whose  subsistence 
was  employed  in  serving  the  common  interests  of  man- 
kind."18 

Article  proposed  by  Franklin  for  the  Treaty  of  Peace 
between  Great  Britain  and  the  United  States. — Accordingly, 
Franklin  proposed  the  following  article:  "If  war 
should  hereafter  arise  between  Great  Britain  and  the  United 
States,  which  God  forbid,  the  merchants  of  either  country 
then  residing  in  the  other  shall  be  allowed  to  remain  nine 
months  to  collect  their  debts  and  settle  their  affairs,  and 
may  depart  freely,  carrying  off  all  their  effects  without 
molestation  or  hindrance.    And  all  fisherman,  all  cultivators 

is  Works  of  Benjamin  Franklin    (Bigelow),  Vol.  VIII,  pp.  246-247. 


70      PERIOD  OF  PEACE  AND  DECLARATION  OF  PARIS. 

of  the  earth,  and  all  artisans  or  manufacturers  unarmed, 
and  inhabiting  unfortified  towns,  villages  or  places,  who 
labor  for  the  common  subsistence  and  benefit  of  mankind, 
and  peaceably  follow  their  respective  employments,  shall 
be  allowed  to  continue  the  same,  and  shall  not  be  molested 
by  the  armed  force  of  the  enemy  in  whose  power  by  the 
events  of  war  they  may  happen  to  fall;  but,  if  anything 
is  necessary  to  be  taken  from  them,  for  the  use  of  such 
armed  force,  the  same  shall  be  paid  for  at  a  reasonable 
price.  And  all  merchants  or  traders  with  their  unarmed 
vessels,  employed  in  commerce,  exchanging  the  products 
of  different  places,  and  thereby  rendering  the  necessaries, 
conveniences,  and  comforts  of  human  life  more  easy  to 
obtain  and  more  general,  shall  be  allowed  to  pass  freely 
unmolested.  And  neither  of  the  powers,  parties  to  this 
treaty,  shall  grant  or  issue  any  commission  to  any  private 
armed  vessels,  empowering  them  to  take  or  destroy  such 
trading  ships,   or  interrupt  such  commerce."19 

Its  embodiment  in  the  Treaty  with  Prussia. — This  article 
was  not  included  in  the  treaty  with  Great  Britain,  but  al- 
most its  exact  counterpart  was  embodied,  as  Article  XXIII 
in  the  Treaty  of  Amity  and  Commerce  of  1785,  which 
Franklin  negotiated  with  Frederick  the  Great.  In  1823 
the  French  Government  announced  its  intention  to  adhere 
to  the  same  principle  in  its  expedition  against  Spain;20 
and  President  Monroe  and  his  Secretary  of  State,  John 
Quincy  Adams,  sought  to  use  the  occasion  to  bring  about 
an  international  agreement  to  the  same  effect,21  but  in  this 
they  were  not  successful.22 

It  is  not  improbable  that  the  "psychological  moment" 
for  effecting  the  reform  in  question  through  international 
agreement  was  when  the  Declaration  of  Paris  was  signed. 
At  no  other  time  have  the  evils  of  war  been  more  palpable 
and  its  benefits  less  apparent.  The  reaction  which  after- 
wards took  place  is  illustrated  by  Lord  Palmerston's  change 
of  position.  In  1856,  as  we  have  seen,  he  was  ready  to 
abolish  the  capture  of  private  property  at  sea  altogether. 

is  Ibid.,  pp.  248-249. 

20  Laveleye  Revue  de  Droit  International,  VII,  p.  565. 
2i  Am.  State  Papers.   For.  Rel.,  V,  246. 

22  Stark,  The  Abolition  of  Privateering  and  the  Declaration  of  Paris, 
p.  41. 


EXEMPTION    OF   PRIVATE   PROPERTY    AT   SEA.  71 

In  1862,  in  the  House  of  Commons,  he  declared  that  his 
former  views  were  immature,  and  that  he  had  come  to  be- 
lieve such  abolition  would  be  dangerous.23  The  United 
States,  however,  has  continued  to  follow  the  lead  of  Frank- 
lin, Monroe,  and  Adams,  and  proposed  at  the  First  Peace 
Conference  a  Declaration  that  private  property  at  sea  should 
be  inviolable.  As  the  subject  was  not  embraced  in  the 
powers  of  the  delegates,  the  Declaration  was  not  adopted, 
but  the  wish  was  expressed  that  it  be  referred  to  a  future 
conference  for  consideration.24  For  the  action  of  the  Sec- 
ond Peace  Conference  the  reader  is  referred  to  the  account 
of  that  Conference.25 

Dana's  argument  against  such  exemption. — That  such  an 
agreement  will  be  reached  in  the  near  future  seems  un- 
likely, fpr  there  appears  to  ha.vp.  hop.n  ft  growing  .disktftU- 
nation  to  forswear  any  of  the  effective  means  of  belligerent 
action.  Dana  has  perhaps  best  stated  the  argument  against 
an  agreement,  in  a  note  to  Wheaton,  in  which  he  says : 

"The  truth  is  the  most  humane  and  often  the  most  effi- 
cient part  of  war  is  that  which  consists  in  stopping  the 
commerce  and  cutting  off  the  material  resources  of  the 
enemy.  If  cutting  off  our  commerce  with  him,  and  his 
with  us,  cripples  and  embarrasses  him,  it  must  be  done. 
Driving  his  general  commerce  from  the  sea,  and  blocking 
his  ports  to  keep  neutral  commerce  from  him,  must  diminish 
his  resources,  and  tend  to  coerce  him.  It  is  the  least  ob- 
jectionable part  of  warfare. 

"It  takes  no  lives,  sheds  no  blood,  imperils  no  house- 
holds; has  its  field  on  the  ocean,  which  is  a  common  high- 
way; and  deals  only  with  persons  and  property  voluntarily 
embarked  in  the  chances  of  war,  for  the  purpose  of  gain, 
and  with  the  protection  of  insurance.  War  is  not  a  game 
of  strength  between  armies  or  fleets,  nor  a  competition  to 
kill  the  most  men  and  sink  the  most  vessels,  but  a  grand 
national  appeal  to  force,  to  secure  an  object  deemed  essen- 
tial, when  every  other  appeal  has  failed.  The  purpose  of 
using  force  is  to  coerce  your  enemy  to  the  act  of  justice 
assumed  to   be   necessary.     It   is   hazardous  to   lay   down 

23  Hansard's  Parliamentary  Debates,  Third  Series,  CLXV,   1692. 

24  Holls,  The  Peace  Conference  at  The  Hague,  p.  306,  et  seq. 

25  See  infra,  p.   188. 


72  PERIOD   OF    PEACE    AND   DECLARATIONS    OF    PARIS. 

absolute  rules   in  advance  for  all   nations,   under  all   cir- 
cumstances, limiting  possible  means  of  coercion."20 

Hope  for  such  exemption  lies  rather  in  international 
practice  than  in  international  agreement. — That  the  capture 
of  private  property  at  sea  is  often  utterly  futile  can  hardly 
be  questioned.  The  solution  of  the  question  would  seem 
to  be  to  class  such  captures  among  those  "ulterior  measures 
of  government,"27  of  which  Chief  Justice  Marshall  speaks, 
which,  not  following  from  the  fact  of  war  itself,  are  only 
carried  out  when  the  proper  political  authority  thinks  them 
necessary.  If,  on  the  occasion  of  war,  each  nation  should 
announce  its  intention  not  to  avail  itself  of  this  right 
at  all,  or  on  condition  of  reciprocity,  as  Austria  and  Prussia 
did  in  1866,  or  should  reserve  the  right,  as  Spain  did  with 
regard  to  privateering  in  1898,  it  is  possible  that  eventually 
a  practice  of  abstention  would  grow  up  that  would  render 
an  agreement  possible  or  superfluous. 

26  Dana's  Wheaton.  p.  401. 

27  United  States  v.  Brown,  8  Cranch,   126. 


THE  CIVIL    WAE   IN    THE   UNITED  STATES.  73 


CHAPTER  VII. 

THE   CIVIL   WAR   IN   THE    UNITED   STATES. 

The  Instructions  for  the ,  government  of  Armies  of  the 
United  States  in  the  Field.-j-lThe  Civil  War  in  the  United 
States  will  be  remembered  m  the  annals  of  the  Laws  of 
War  for  the  issuance  of  the  Instructions  for  the  Govern- 
ment of  Armies  of  the  United  States  in  the  Field,  prepared 
by  Dr.  Francis  Lieber  and  revised  by  a  board  of  officers 
of  the  United  States  Army.J  I  The  circumstances  that  led 
to  their  preparation  are  narrated  by  Brigadier-General 
George  B.  Davis  in  his  work  on  the  Elements  of  Interna- 
tional Law.  "The  need  of  a  positive  code  of  instructions 
was,"  says  General  Davis,  "severely  felt  during  the  early 
part  of  the  Civil  WTar  in  the  United  States.  During  the 
first  two  years  of  that  war  the  Federal  Government  had 
succeeded  in  placing  in  the  field  armies  of  unexampled  size, 
composed  in  great  part  of  men  taken  from  civil  pursuits 
most  of  whom  were  unfamiliar  with  military  affairs,  and 
utterly  unacquainted  with  the  usages  of  war.  These  armies 
were  carrying  on  hostile  operations  of  every  kind  over  a 
wide  area,  and  questions  of  considerable  intricacy  and 
difficulty  were  constantly  arising,  which  required  for  their 
decision  a  knowledge  of  international  law  which  was  not 
always  possessed  by  those  to  whom  these  questions  were 
submitted  for  decision.  Conflicting  decisions  and  rulings 
were  of  frequent  occurrence  in  different  armies,  and  at 
times  in  different  parts  of  the  same  field  of  operation  and 
great  harm  not  infrequently  resulted  before  these  decisions 
could  be  reversed  by  competent  authority. 

"To  remedy  this  difficulty,  Professor  Francis  Lieber,  an 
eminent  jurist,  who  had  been  for  many  years  an  esteemed 
and  honored  citizen  of  the  United  States,  was  requested 
by  the  Secretary  of  War  to  prepare  a  code  of  instruction 
for  the  government  of  the  armies  in  the  field.  This  code 
while  conforming  to  the  existing  usages  of  war  on  land, 
was  to  contain  such  modifications  as  were  necessary  to 
adapt  those  usages  to  the  peculiar  circumstances  of  the 
contest  then  prevailing.    The  rules  prepared  by  Dr.  Lieber 


U/ 


74  THE   CIVIL    WAR   IN    THE    UNITED   STATES. 

were  submitted  to  a  board  of  officers,  by  whom  they  were 
approved  and  recommended  for  adoption.  They  were  pub- 
lished in  1863,  and  were  made  obligatory  upon  the  armies 
of  the  United  States  by  their  publication  in  the  form  of  a 

eneral  Order  of  the  AVar  Department."1 

They  were  the  first  comprehensive  codification  of  the 
laws  of  war.— TheJjisJxii£liojis_were  of  special  importance 
as  the  first  comprehensive  codification  of  the  laws  of  war. 
At  the  Brussels  Conference  of  1874,  the  President,  Baron 
Jomini,  declared  it  was  they  that  had  suggested  the  idea 
of  an  international  war  code  and  had  thus  led  the  Russian 
Emperor  to  convoke  the  Conference,2  and  as  the  Project, 
of  Declaration  adopted  at  Brussels  served  as  the  basis  of 
The  Hague  Regulations  relating  In  the  Laws  and  Customs 
of  War  on  Land,  the  historical  importancToF'The  Instruc- 
tions  is  evident. 

Their  defects.— But  it  was  a  first  attempt.  It  embodied 
extreme  views  of  the  rights  of  the  military  occupant  over 
the  inhabitants  of  occupied  territory,3  followed  too  closely 
the  hard  precedents  of  earlier  wars,4  and  was  in  general 
diffuse  and  academic.  Written  by  a  nonmilitary  man,  it 
lacked  the  clearness  which  actual  experience  would  have 
afforded,  and  omitted  much  that  might  have  occurred  to 
one  who  had  seen  responsible  service  in  the  field.  Fur- 
thermore, it  was  the  work  of  an  individual  and  not  of  a 
collective  body.  The  advantage  of  the  latter  in  legislative 
work  of  any  kind  is  not  easily  over-estimated.  Prof.  Hol- 
land has  noticed  this  in  connection  with  the  drawing  up 
of  the  Manual  of  the  Laws  of  War  of  the  Institute  of  Inter- 
national Law.  "I  was  much  struck,"  he  says,  "by  the 
advantage  of  getting  a  number  of  competent  persons  to 
work  simultaneously  upon  one  subject,  even  when  oral  dis- 
cussion of  their  differences  of  opinion  was  only  partially 
possible.  It  was  surprising  to  see  how,  when  a  phrase  had 
carefully  been  considered  for  months,  it  was  still  possible 
for  a  fresh  mind  to  make  a  suggestion  for  its  amendment, 
which  every  one  at  once  saw  to  be  an  improvement."5 

i  Davis,  Elements  of  International  Law.  pp.  499-500. 

2  Protocol  2  of  Full  Conf.,  Pari.  Papers,   1875,  Misc.  No.  1. 

3  Articles  26,  52,  82,  85. 

4  Articles  36,  60. 

e  Holland,  Studies  in  International  Law,  p.  94. 


ACTS  OF  SEQUESTRATION   AND  CONFISCATION.  75 

The  Confederate  Act  of  Sequestration. — Early  in  the  war, 
on  August  6,  1861,  the  United  States  Congress  passed  an 
act  subjecting  "to  seizure  and  forfeiture  all  property  of 
every  kind,  used  or  intended  to  be  used,  in  aiding,  abet- 
ting or  promoting  the  insurrection,"0  or  allowed  or  per- 
mitted to  be  so  used,  including  slaves  employed  in  military 
operations.7  This  was  clearly  within  belligerent  right  at 
that  time.  Property  specially  adapted  to  such  purposes 
when  on  the  sea  would  be  classed  as  contraband  of  war  and 
confiscated  even  in  the  hands  of  neutrals.  But  exaggerated 
ideas  of  the  effect  of  the  statute  appear  to  have  been  held 
by  the  Confederate  authorities,  who  replied  by  the  Act  of 
Sequestration  of  August  30,-1861,  which  subjected  to  se-_ 
questration  all  property  of  the  inhabitants  of  the  Northern 
States,  including  debts  owed  to  them  by  Southerners,  in 
order  to  indemnify  those  aiding  the  Confederate  States 
for  losses  incurred  under  any  confiscation  acts  of  the  United 
States  or  of  any  of  the  States  thereof.8  This  act  could 
have  been  justified  only  as  a  measure  of  retaliation  for  the 
Federal  Confiscation  Act,  but,  as  that  act  was  within  bel- 
ligerent right,  it  farnTsTTecT  no  excuse  for  the  seizure  of 
private  property  and  especially  of  debts,  which  by  this 
time  had  come  to  be  recognized  as  inviolable.  Mr.  Blaine 
states  that  the  Sequestration  Act  was  largely  responsible 
for  the  Confiscation  and  Captured  and  Abandoned  Prop- 
erty Acts  passed  later  in  the  North.9 

The  Federal  Confiscation  Act  of  July  17,  1862.— The  Fed- 
eral Confiscation  Act  of  July  17,  1862,  directed  that  pro- 
ceedings in  rem  be  taken  against  all  property  of  those  who 
did  nj>t  cease  after  sixty  days  to  aid  and  abet  the  rebel- 
lion.1,? The  act  was  directed  at  private  property  generally 
and  /can  be  defended  only  as  a  retaliation  for  the  Seques- 
tration Act  or  as  an  exercise  of  sovereign  power  in  sup- 
pressing rebellion,  not  as  an  ordinary  exercise  of  belligerent 
right.  As  a  matter  of  fact,  however,  the  requirement  that 
the  proceedings  for  confiscation  must  be  brought  in  the 
district  or  territorial   court   of  the  United  States,  at  the 

e  United  States  v.  Klein,   13  Wallace,   130. 

7  McPherson,  History  of  the  Rebellion,  p.   195. 

s  McPherson,   p.  203. 

a  Blaine,  Twenty  Years  of  Congress,  I,  349. 

io  McPherson.  pp.   196-197. 


76  THE    CIVIL   WAR   IN    THE    UNITED   STATES. 

place  where  the  property  was  found,  limited  its  operation 
to  Northern  States,  or  to  places  where  the  power  of  the 
United  States  was  firmly  established.  As  a  result,  the  act 
netted  only  $408,008.03  into  the  United  States  Treasury. 
The  returns  of  the  operation  of  the  Confederate  Sequestra- 
tion Act  are  very  meagre,  but  from  January  1,  1863,  to 
September  30,  1864,  they  amounted  to  $6,102,070.39  in  Con- 
federate currency,  equivalent  to  perhaps  $380,000  in  gold 
at  the  time  of  collection.11 

The  Captured  and  Abandoned  Property  Act. — Much  more 
important  was  the  Captured  and  Abandoned  Property  Act 
of  March  12,  1863.  It  declared  that  all  captured  and  aban- 
doned property  not  used  or  intended  to  be  used  for  waging 
or  carrying  on  war  against  the  United  States  should  be 
turned  over  to  agents  of  the  Treasury,  and  the  proceeds 
turned  into  the  Treasury,  subject  to  claim  by  the  owner 
till  two  years  after  the  suppression  of  the  rebellion.12  "The 
act  was  undoubtedly  intended  to  apply  particularly  to  cot- 
ton and  the  other  staple  products  of  the  Southern  States. 
To  such  products  only  was  it  in  practice  applied."13  They 
constituted  the  sinews  of  the  South,  her  mainstay  in  the 
war.  From  the  sales  under  this  act,  $31,722,466.20  was 
realized.14 

It  was  the  general  impression  and  such  was  the  literal 
wording  of  the  act  that  only  those  owners  who  had  never 
given  any  aid  or  comfort  to  the  rebellion  would  be  entitled 
to  claim  the  proceeds  of  the  property.  Accordingly  few 
who  had  participated  in  the  rebellion  even  though  they 
had  been  pardoned,  put  in  any  claim  under  the  Act  and 
when,  in  the  December  Term  of  1871,  the  Supreme  Court 
decided  that  the  property  had  not  been  confiscated,  but 
had  been  held  in' trust  not  only  for  those  who  had  been 
loyal,  but  for  those  who  had  been  pardoned  as  well15  the 
two  years  for  presenting  claims  had  passed.  Congressional 
Committees  have  continued  to  make  efforts  to  have,  the 
period  for  presenting  claims  revived,  but  so  far  unsuccess- 
fully, so  that  at  last  accounts  $10,512,007,96  was  still  held 

ii  Schwab,  The  Confederate  States  of  America,  p.  120. 

12  13  Wallace,  130. 

13  Moore,   International   Arbitrations,   Vol.   4.   p.   37-45. 

14  House  Report   784,   51st   Congress,    1st   Sess. 
is  United  States  v.  Klein,  13  Wallace,  128. 


TREATMENT    OF    PRIVATE    PROPERTY.  77 

in  trust  by  the  United  States  Government  for  beneficiaries 
who  had  no  means  of  reaching  it.16 

Treatment  of  private  property  by  the  federal  forces. — 
The  federal  forces  did  not,  as  a  rule,  live  off  the  country. 
One  of  the  first  to  do  this  was  General  Pope.  On  July  18, 
1862,  he  gave  orders  that  his  troops  should,  as  far  as  pos- 
sible, subsist  on  the  country.  He  carefully  regulated  the 
gathering  of  supplies  and  ordered  vouchers  to  be  given 
for  the  reimbursement  of  loyal  citizens  after  the  war.17 
Later  on  there  were  other  instances  of  living  off  the  coun- 
try, that  of  General  Sherman,  on  his  March  to  the  Sea  being 
the  most  notable.  Of  that  march  General  Sherman  says: 
"No  army  could  have  carried  along  sufficient  food  and 
forage  for  a  march  of  three  hundred  miles;  so  that  foraging 
in  some  shape  was  necessary.  The  country  was  sparsely 
settled,  with  no  magistrates  or  civil  authorities  who  could 
respond  to  requisitions,  as  is  done  in  all  the  wars  of  Europe ; 
so  that  this  system  of  foraging  was  simply  indispensable 
to  our  success."18  Where  the  officer  in  command  thought 
proper  written  certificates  of  the  facts  but  no  receipts  were 
to  be  given.19 

General  Sherman's  action  at  Atlanta. — General  Sherman's 
action  at  Atlanta  in  expelling  the  inhabitants  and  destroy- 
ing a  good  part  of  the  town  seems  hard  to  justify.  In 
defense  of  his  action  General  Sherman  said  he  wished  all 
the  houses  for  military  storage  and  occupation;  that  he 
desired  to  contract  the  lines  of  defense  to  the  narrow  and 
vital  parts  of  the  city;  that  if  the  poor  had  been  allowed 
to  remain  they  would  eventually  have  had  to  be  fed,  and 
that  the  continued  residence  of  the  inhabitants  would  have 
been  liable  to  result  in  correspondence  dangerous  to  the 
cause.20 

The  devastation  of  the  Shenandoah  Valley  by  General 
Sheridan. — Another  noted  incident  of  the  war  was  the  dev- 
astation of  the  Shenandoah  Valley  by  General  Sheridan. 
The  valley  had  been  of  immeasurable  value  to  General 
Lee  in  furnishing  him  with  men  and  supplies.     The  raid 

is  House  Report  784,  51st  Congress,  1st  Sess. 
17  Ropes,  The  Army  under  Pope,  p.   174. 
is  Sherman's  Memoirs,   Vol.   II,  p.    183. 
wlbid.,  p.   176. 
20  Ibid.,  p.   118. 


78  THE    CIVIL   WAR   IN    THE    UNITED  STATES. 

was  made  under  orders  from  General  Grant,  who,  on 
August  16,  1864,  wrote : 

"If  you  can  possibly  spare  a  division  of  cavalry,  send 
them  through  Loudoun  County  to  destroy  and  carry  off 
the  crops,  animals,  negroes,  and  all  men  under  fifty  years 
of  age  capable  of  bearing  arms.  In  this  way  you  will  get 
many  of  Mosby's  men.  All  male  citizens  under  fifty  can 
fairly  be  held  as  prisoners  of  war,  not  as  citizen  prisoners. 
If  not  already  soldiers,  they  will  be  made  so  the  moment 
the  rebel  army  gets  hold  of  them.'-'21  The  order  was  an 
extreme  one,  but  aimed  as  it  was  at  a  population  composed 
largely  of  guerillas,  as  Mosby's  men  were,  it  cannot  be  said 
to  lack  justification. 

General  Sheridan's  views  on  the  fundamental  principles 
of  the  laws  of  war. — General  Grant's  orders  were  the  oc- 
casion of  the  following  comment  on  the  part  of  General 
Sheridan : 

"Hence,  as  I  have  said,  I  endorsed  Grant's  programme, 
for  I  do  not  hold  war  to  mean  simply  that  lines  of  men 
shall  engage  each  other  in  battle,  and  material  interests 
be  ignored.  This  is  but  a  duel,  in  which  one  combatant 
seeks  the  other's  life;  war  means  much  more,  and  is  far 
worse  than  this.  Those  who  rest  at  home  in  peace  and 
plenty  see  but  little  of  the  horrors  attending  such  a  duel, 
and  even  grow  indifferent  to  them  as  the  struggle  goes  on, 
contenting  themselves  with  encouraging  all  who  are  able- 
bodied  to  enlist  in  the  cause  to  fill  up  the  shattered  ranks 
as  death  thins  them.  It  is  another  matter,  however,  when 
deprivation  and  suffering  are  brought  to  their  own  doors. 
Then  the  case  appears  much  graver,  for  the  loss  of  prop- 
erty weighs  heavy  with  the  most  of  mankind,  heavier  often 
than  the  sacrifices  made  on  the  field  of  battle.  Death  is 
popularly  considered  the  maximum  of  punishment  in  war, 
but  it  is  not ;  reduction  to  poverty  brings  prayers  for  peace 
more  surely  and  more  quickly  than  does  the  destruction  of 
human  life,  as  the  selfishness  of  man  has  demonstrated  in 
more  than  one  great  conflict."22 

Similar  views  of  General  Sherman. — General  Sherman  had 
written  in  a  similar  strain  from  Savannah  to  General  Hal- 
leck,  December  24,  1864.    He  said : 

2i  Sheridan's  Memoirs,  Vol.  I,  p.  486. 
22  Ibid.,  pp..  487-488. 


GUERILLA  WARFARE.  79 

"I  attach  more  importance  to  these  deep  incisions  into  the 
enemy's  country,  because  this  war  differs  from  European 
wars  in  this  particular;  we  are  not  only  fighting  hostile 
armies,  but  a  hostile  people,  and  must  make  old  and  young, 
rich  and  poor,  feel  the  hard  hand  of  war,  as  well  as  their  or- 
ganized armies.  I  know  that  this  recent  movement  of  mine 
through  Georgia  has  had  a  wonderful  effect  in  this  respect. 
Thousands  who  have  been  deceived  by  their  lying  newspa- 
pers to  believe  that  we  were  being  whipped  all  the  time  now 
realize  the  truth,  and  have  no  appetite  for  a  repetition  of  the 
same  experience."23 

The  main  features  of  the  March  to  the  Sea  and  of  General 
Sheridan's  action  in  the  Shenandoah  above  sound  criticism. 
— The  opinions  of  two  such  generals  is  not  to  be  regarded 
lightly.  Expressions  in  them  may  undoubtedly  be  inter- 
preted to  justify  acts  which  none  would  have  more  forcibly 
condemned  than  they.  But  in  judging  such  expressions 
they  can  only  be  understood  in  the  light  of  the  circum- 
stances that  occasioned  them.  These  were  Sheridan's  ac- 
tion in  the  Shenandoah  and  Sherman's  March  to  the  Sea. 
Any  theory  which  would  condemn  the  essential  features 
of  either  would  need  strong  arguments  in  its  favor. 

The  resort  to  guerilla  warfare  by  the  Confederate  author- 
ities.— In  April,  1862,  the  organization  of  Partisan  Rangers 
was  authorized  by  the  Confederate  Government,24  although 
previously  to  that  time  isolated  bands  of  men  had  been 
recognized  by  Confederate  commanders  as  soldiers.  Their 
excesses,  or  often  the  excesses  committed  by  others  under 
the  protection  of  their  name,  gave  rise  to  repeated  cor- 
respondence on  the  part  of  the  opposing  generals.  On  July 
3,  1862,  when  in  command  of  the  army  in  West  Tennessee, 
General  Grant  had  occasion  to  issue  the  following  order: 

"The  system  of  guerilla  warfare  now  being  prosecuted 
by  some  troops  organized  under  the  authority  of  the  so- 
called  Southern  Confederacy,  and  others  without  such  au- 
thority, being  so  pernicious  to  the  welfare  of  the  community 
where  it  is  carried  on,  and  it  being  within  the  power  of 

23  Sherman's  Memoirs,  Vol.  II,  p.  227. 

a*  Official  Records  of  the  War  of  the  Rebellion..  Series  IV,  Vol.  I, 
p.  1094,  et  seq. 


80  THE    CIVIL   WAR    IN    THE    UNITED   STATES. 

the  communities  to  suppress  this  system,  it  is  ordered  that 
wherever  loss  is  sustained  by  the  government,  collections 
shall  be  made  by  seizure  of  a  sufficient  amount  of  personal 
property  from  persons  in  the  immediate  neighborhood  sym- 
pathizing with  the  rebellion  to  remunerate  the  government 
for  all  loss  and  expense  of  collection. 

"Persons  a.cting  as  guerillas  without  organization  and 
without  uniform  to  distinguish  them  from  private  citizens 
are  not  entitled  to  treatment  as  prisoners  of  war  when 
caught  and  will  not  receive  such  treatment."25 

Its  failure. — But  it  was  not  the  Northern  commanders 
alone  who  had  cause  to  complain.  In  his  report  of  No- 
vember 26,  1863,  James  A.  Sedden,  the  Confederate  Sec- 
retary of  War,  said  that  their  Rangers  when  under  ineffi- 
cient officers  and  within  the  Confederate  lines  had  come 
to  be  regarded  as  more  formidable  and  destructive  to  their 
own  people  than  to  the  enemy.26  Accordingly  on  February 
17,  1864,  the  act  organizing  Partisan  Rangers  was  repealed, 
permission  being  given  the  Secretary  of  War  to  except  from 
such  act  companies  acting  within  the  lines  of  the  enemy.27 
In  the  first  of  the  following  April,  General  Lee  wrote  to 
the  War  Department  saying  that  he  would  see  to  the  trans- 
fer of  the  partisans  connected  with  his  army  into  the  regu- 
lar service,  but  that  if  it  were  not  possible  to  do  that  with 
Mosby's  men,  he  would  recommend  the  retention  of  that 
battalion  as  partisans.  He  was  inclined  to  believe  Mosby's 
discipline  had  been  strict,  but  added: 

"Experience  has  convinced  me  that  it  is  almost  impos- 
sible under  the  best  officers  even,  to  have  discipline  in  these 
bands  of  partisan  rangers,  or  to  prevent  them  from  becom- 
ing an  injury  instead  of  a  benefit  to  the  service,  and  even 
where  this  is  accomplished,  the  system  gives  license  to 
many  deserters  and  marauders  who  assume  to  belong  to 
these  authorized  companies  and  commit  depredations  on 
friend  and  foe  alike.  Another  great  objection  to  them  is 
the  bad  effect  upon  the  discipline  of  the  army  from  the 
constant  desire  of  the  men  to  leave  their  commands  and 
enjoy  the  great  license  allowed  in  these  bands.     With  the 

25/b«Z.,  Series  I,  Vol.  XVII,  Part  II,  p.  69. 
w  Ibid.,  Series  IV.  Vol.   II,  p.   1003. 
27  Ibid.,  Vol.  Ill,  p.  194. 


THE  "FORT  I'll. LOW    MASSACRE/''  Si 

single  exception  mentioned,  I  hope  the  order  will  be  issued 
at  once,  disbanding  the  companies  and  battalions  serving 
in  this  department."28 

The  general  inefficiency  and  undesirability  of  guerilla 
warfare. — The  experience  of  Generals  Grant  and  Lee  and 
of  the  other  generals  of  the  war  seems  to  coincide  with 
that  of  commanders  in  all  time  as  to  the  inefficiency  and 
undesirability  of  irregular  troops  under  ordinary  circum- 
stances. 

The  "Fort  Pillow  Massacre. "—Threats  of  "no  quarter" 
were  at  times  made  during  the  war,  but  apparently  not 
carried  out.  Notice,  however,  must  be  taken  of  what  is 
known  as  the  "Fort  Pillow  Massacre."  As  over  three  hun- 
dred out  of  a  total  garrison  of  five  hundred  and  fifty-seven 
men  survived,  it  is  seen  that  no  such  general  slaughter 
could  have  taken  place  as  has  sometimes  been  claimed. 
Of  the  prisoners,  two  hundred  and  twenty-six  were  able  to 
march  away  with  their  captors.29  The  rest  were  received 
on  board  the  United  States  Steamer  Silver  Cloud  on  the 
following  day.  It  is  a  significant  fact  that  about  half  of 
those  received  on  board  were  negroes.  Considering  the 
circumstances  of  the  case,  the  number  of  killed  does  not 
seem  extraordinary.  After  a  stubborn  resistance  the  gar- 
rison endeavored  to  escape  over  the  bluff  to  a  United  States 
gunboat  which  was  lying  in  the  river.  They  did  not  lower 
the  flag  and  the  Confederate  soldiers  below  the  bluff  had 
no  means  of  knowing  that  the  fort  was  taken  till  the  hal- 
yards of  the  flag  were  cut  by  one  of  General  Forrest's 
officers.30  General  Forrest  seems  to  have  acted  with  great 
promptness  in  bringing  the  firing  to  a  close.  In  his  official 
report  he  says  that  twenty  minutes  after  the  bugle  had 
sounded  the  charge,  firing  had  ceased.31  General  Sherman 
testifies  that  General  Forrest  was  usually  very  kind  in 
his  treatment  of  prisoners  on  other  occasions.32  The  con- 
temporary reports  of  the  affair  must  be  attributed  to  the 
tremendous  excitement  and  passion  under  which  everyone 
at  the  time  was  laboring. 

28  Ibid.,  Series  I,  Vol.  XXXIII,  p.  1252. 

20  Wyeth,  Life  of  Gen.  Forrest,  p.  359. 

so  See  Wyeth,  Life  of  Gen.  Forrest,  and  Mathes,  General  Forrest. 

3i  Wyeth,  p.  365. 

32  Memoirs,  Vol.  II,  pp.  12-13. 

6 


82  THE    CIVIL   WAR    IN   THE   UNITED   STATES. 

Treatment  of  prisoners  of  war. — The  treatment  of  pris- 
oners of  war  left  much  to  be  regretted,  but  little  can  be 
gained  by  going  into  its  details.  Early  in  the  war  persons 
captured  on  Confederate  privateers  were  sentenced  to  death 
as  pirates,  but,  whether  from  fear  of  retaliation  or  a  sense 
of  justice,  their  sentence  was  never  executed.  Henceforth, 
persons  so  captured  were  allowed  the  privileges  of  prisoners 
of  war,  and  the  armies  in  the  field  in  their  conduct  towards 
each  other  acted  according  to  the  principles  of  international 
warfare. 

~~Tiie~  Confederacy  a  de  facto  government. — An  important 
distinction  was  drawn  between  acts  done  in  obedience  to 
the  Confederate  Government  as  a  de  facto  government,  and 
acts  done  in  aid  of  the  rebellion.  The  distinguishing  char- 
acteristics of  a  de  facto  government  of  the  type  of  the  Con- 
federacy, Chief  Justice  Chase  declared  to  be  (1),  "that  its 
existence  is  maintained  by  active  military  power,  within 
the  territories,  and  against  the  rightful  authority  of  an 
established  and  lawful  government;  and  (2),  that  while 
is  exists,  it  must  necessarily  be  obeyed  in  civil  matters  by 
private  citizens  who,  by  acts  of  obedience,  rendered  in 
submission  to  such  force,  do  not  become  responsible,  as 
wrongdoers,  for  those  acts,  though  not  warranted  by  the 
laws  of  the  rightful  government.  *  *  *  To  the  extent  then,  of 
actual  supremacy,  however  unlawfully  gained,  in  all  mat- 
ters of  government  within  its  military  lines,  the  power  of 
the  insurgent  government  cannot  be  questioned.  That 
supremacy  did  not  justify  acts  of  hostility  to  the  United 
States.  How  far  it  should  excuse  them  must  be  left  to  the 
lawful  government  upon  the  reestablishment  of  its  authority. 
But  it  made  obedience  to  its  authority,  in  civil  and  local 
matters,  not  only  a  necessity  but  a  duty.  Without  such 
obedience  civil  order  is  impossible."33  So,  "a  contract  for 
the  payment  of  Confederate  States  treasury  notes,  made 
between  parties  residing  within  the  so-called  Confederate 
States"  was  enforced  "in  the  courts  of  the  United  States, 
the  contract  having  been  made  on  a  sale  of  property  in 
the  usual  course  of  business,  and  not  for  the  purpose  of 
giving  currency  to  the  notes  or  otherwise  aiding  the  re- 
bellion."34 

33Thorington  v.  Smith,  8  Wallace,  9-11. 
34Thorington  v.  Smith,  8  Wallace,  1. 


SANITARY   COMMISSION.  83 

The  United  States  Sanitary  Commission. — One  of  the  most 
hopeful  features  of  the  war  was  the  creation  of  the  United 
States  Sanitary  Commission,  a  voluntary  organization,  for 
the  purposes  "of  inquiry  and  advice  in,  respect  of  the  sani- 
tary interests  of  the  United  States  forces."  It  was  one 
of  the  many  instances  of  the  increased  attention  to  the 
care  of  the  troops  which  had  commenced  with  the  work  of 
Miss  Nightingale  and  the  Sanitary  Commission  in  the 
Crimean  War. 


84  THE    GENEVA    CONVENTION    OF    1864. 


>JJ 


CHAPTER  VIII. 

THE    GENEVA    CONVENTION    OP    1864    AND    THE    DECLARATION    OF 

ST.   PETERSBURG. 


The  seed  that  developed  into  the  Geneva  Convention. — In- 
dependently, and  almost  simultaneously,  as  the  result  of 
their  experiences  in  the  Italian  War  of  1859,  Dr.  Palasciano 
in  Italy,  M.  Henri  Arnault  in  France,  and  M.  Henri  Dunant 
in  Geneva,  called  attention  to  the  need  of  greater  care  for 
the  sick  and  wounded.1  The  efforts  of  M.  Dunant  bore 
fruit.  That  this  was  so,  or  at  any  rate  that  the  fruit  was 
so  abundant,  was  largely  due  to  the  humanity,  energy  and 
diplomacy  of  his  friend,  M.  Gustave  Moynier.  Among  the 
names  that  have  stood  for  the  betterment  of  mankind  his 
deserves  a  high  place. 

The  work  of  the  Geneva  Society  of  Public  Utility. — As 
President  of  the  Geneva  Society  of  Public  Utility,  M. 
Moynier  set  about  devising  ways  and  means  for  the  carry- 
ing out  of  the  ideas  of  M.  Dunant,  and  as  a  result  suc- 
ceeded in  gathering  together  at  Geneva  a  semi-official  con- 
ference of  military  men  and  doctors,  about  half  of  whom 
were  representatives  of  the  war  departments  of  the  dif- 
ferent governments.  The  Conference  sat  from  the  26th  to 
the  29th  of  October,  1863.  It  decided  on  the  creation  of 
a  network  of  committees  of  succor  for  the  sick  and  wounded 
in  all  countries,  and  expressed  the  wish  "that  neutrality 
be  proclaimed  in  time  of  war,  by  belligerent  nations,  for 
ambulances  and  hospitals,  and  that  it  be  equally  admitted 
in  the  most  complete  manner  for  the  official  sanitary  per- 
sonnel, for  volunteer  nurses,  for  the  inhabitants  of  the 
country  succoring  the  wounded,  and  for  the  wounded  them- 
selves ;  that  some  identical,  distinctive  sign  be  adopted  for 
the  sanitary  corps  of  all  the  armies,  or  at  least  for  the 
persons  of  the  same  army  attached  to  that  service ;  and  that 
an  identical  flag  be  adopted  in  all  countries  for  ambulances 
and  hospitals."2 

i  Moynier,  Etude  sur  la  Convention  de  Gtenfeve,  p.  49,  et  seq. 
-  Moynier,  Ibid.,  p.  59. 


THE  RED  CROSS.  85 

Work  of  the  Conference  of  1863. — It  will  be  observed 
that  the  work  of  the  Conference  consisted  of  two  parts, 
the  decision  to  create  Red  Cross  Societies  and  the  expres- 
sion of  the  wish  for  the  neutralization  of  the  sick  and 
wounded  and  of  the  persons  and  property  connected  there- 
with. The  one  led  to  the  Red  Cross  Societies,  the  other  to 
the  Geneva  Convention  of  1864,  two  things  commonly  as- 
sociated but  which  were  entirely  distinct.  The  Convention 
of  Geneva,  which  was  adopted  in  the  following  year,  did 
not  extend  the  protection  which  it  offered  the  official  staff 
to  volunteer  societies.  At  the  Conference  of  Brussels  of 
1874,  it  was  the  opinion  that  such  protection  should  be  so 
extended,  and  this  has  now  been  done  by  the  Revised  Con- 
vention of  1906.  Into  the  history  of  the  Red  Cross  Socie- 
ties it  is  not  the  purpose  of  this  work  to  go,  though  it 
might  be  done  with  great  profit.  The  ability  of  the  Presi- 
dent of  the  International  Committee  at  Geneva,  M.  Gustave 
Moynier,  has  taken  the  society  out  of  the  category  of  a 
mere  private  association  and  placed  it  in  a  position  where 
it  deals  directly  with  governments. 

The  International  Congress  of  1864. — The  Conference  of 
1863  was  not  diplomatic  as  most  of  its  official  members  rep- 
resented their  war  departments  rather  than  their  govern- 
ments ;  but  it  invested  the  Geneva  Committee  with  power 
to  take  steps  towards  the  calling  of  a  Congress  which  should 
represent  the  governments  themselves.  The  committee 
sounded  its  various  correspondents  as  to  the  disposition 
of  their  respective  governments,  and  finding  their  answers 
favorable,  secured  the  cooperation  of  the  Swiss  Federal 
Council,  which,  on  June  6,  1864,  addressed  invitations  to 
most  of  the  States  of  Europe  and  America  to  attend  an 
International  Congress.  Sixteen  states,  including  Prussia, 
Spain,  the  United  States,  France,  Great  Britain,  Italy  and 
Norway  and  Sweden  responded  by  sending  delegates.  The 
Congress  met  on  August  8,  and  on  August  22,  1864,  a  treaty 
was  signed  along  the  general  lines  of  the  views  expressed 
by  the  Conference  of  the  preceding  year.  This  treaty  has 
since  become  famous  as  the  Geneva  Convention.3 

As  already  stated,  this  Convention  gave  no  recognition 
to  what  have  since  become  known  as  the  Red  Cross  So- 
cieties, it  being  feared  that  such  recognition  might  result 

3  Moynier,  Etude  sur  la  Convention  de  Geneve,  p.  60,  et  seq. 


86  THE    GENEVA    CONVENTION    OF    1864. 

in  interference  with  military  operations.  It,  however,  de- 
clared that  places  used  exclusively  for  the  sick  and  wounded 
should  not  be  made  the  scene  of  hostile  operations;  that 
ambulances,  or  field  hospitals,  in  actual  service  should  be 
returned  on  the  recovery  of  the  sick  and  wounded  in  them ; 
and  that  prisoners  incapable  of  further  service  should  be 
sent  back,  as  should  the  medical  and  religious  staff  of  the 
army,  on  the  completion  of  the  duties  in  which  they  were 
engaged  at  the  time  of  the  capture.  The  Convention  fur- 
ther emphasized  the  obligation  to  care  for  the  sick  and 
wounded,  no  matter  to  what  nation  they  should  belong; 
declared  that  the  inviolability  of  noncombatants  should  not 
be  forfeited  for  sheltering  the  sick  and  wounded,  but  that 
they  should  be  exempt  from  quartering  and  freed  from  a 
portion  of  the  war  contributions  imposed.  As  a  compliment 
to  the  Swiss  Republic,  the  Congress  chose  the  design  of 
its  national  flag  with  the  colors  reversed,  a  red  cross  on  a 
white  field  as  a  mark  to  distinguish  the  medical  and  re- 
ligious personnel  and  the  places  set  aside  for  the  care  of 
the  sick  and  wounded. 

The  cordial  reception  given  the  Convention. — The  recep- 
tion given  to  the  Convention  was  very  cordial.  In  less 
than  four  years  all  Europe  had  adhered  to  it,  including 
even  Turkey,  which  adhered  July  5,  1865.  Persia  was  the 
first  of  the  purely  Asiatic  nations,  and  Salvador  the  first 
of  the  American,  to  follow  the  example  of  those  of  Europe. 
Both  signed  the  Convention  in  1874.  Salvador  was  fol- 
lowed by  Bolivia,  Chili  and  the  Argentine  Republic,  in 
1879 ;  by  Peru  in  1880,  and  by  the  United  States  in  1882. 
In  Asia,  the  example  of  Persia  was  followed  by  Japan, 
June  5,  1886 ;  by  Siam,  June  29,  1895 ;  and  by  China,  June 
29,  1904. 

The  significance  of  the  Convention.— The  significance  of 
the  Geneva  Convention  lay  not  in  the  novelty  of  its  ideas, 
as  most  of  its  reo^iireTlTenfs  had  already  come  to  be  recog- 
nized as  usages  of  war,  but  in  the  fact  that  it  crystallized 
the  intensef  humanitarian  spiritjof  the  age  which  called.it- 
into  being,  reacted  on  and  helped  to  make  more  intense 
that  spirit  and  preserved  the  expression  of  it  for  an  age 
which  seems  likely  to  be  a  sterner  one  than  that  which 
preceded  it.  !?\ 

Additional  Articles  of  1868. — The  experience  of  the  Aus- 


ST.  PETERSBURG  DECLARATION.  87 

tro-Prusian  War  of  1866  soon  made  the  need  of  certain 
revisions  evident.  The  Swiss  Federal  Council  convoked  a 
Congress  at  Geneva,  which  met  there  in  October,  1868,  and 
voted  what  have  since  been  known  as  the  Additional  Articles 
of  1868,  Nos.  VI  to  XV  of  which  related  exclusively  to 
maritime  warfare.  They  never  became  binding  through 
lack  of  unanimity  in  their  ratification,  but  during  the 
Franco-German  War  and  the  Spanish- American  War,  they 
were  adopted  as  a  modus  Vivendi  pending  hostilities.  The 
articles  relating  to  land  warfare  had  an  especial  value  as 
interpretations  of  the  Convention  of  1864. 

The  Declaration  of  St.  Petersburg. — Almost  simultane- 
ously with  the  Additional  Articles  of  1868  there  was  drawn 
up  the  famous  Declaration  of  St.  Petersburg.  Early  in 
1863,  there  was  introduced  into  the  Russian  army,  for  the 
purpose  of  destroying  caissons  of  ammunition,  a  bullet, 
much  used  in  hunting  the  tiger  and  elephant  in  India,  which 
was  furnished  with  a  percussion  cap,  and  on  coming  into 
contact  with  hard  surfaces  exploded.  In  1864,  the  Minister 
of  War,  deeming  it  improper  that  these  bullets  should  be 
used  against  men,  ordered  that  they  should  be  distributed 
only  to  the  under-officers  of  sharp-shooters,  who  were  never 
to  have  more  than  ten  at  their  disposal  and  were  to  use 
them  with  great  care.  Similar  bullets  were  also  in  use  in 
other  countries.* 

The  use  of  a  new  explosive  bullet  proposed  to  the  Rus- 
sian Government  in  1867. — In  1867  another  explosive  bullet, 
without  the  cap,  but  which  exploded  by  contact  with  a 
substance  even  as  soft  as  the  human  body,  and  which  was 
shattered  by  such  explosion — an  effect  which  the  percus- 
sion cap  had  not  produced — was  proposed  to  the  Russian 
Government.  General  Milutine,  the  Minister  of  War,  feel- 
ing that  the  use  of  such  bullets  would  unnecessarily  in- 
crease the  miseries  of  war,  proposed  to  the  Emperor  Alex- 
ander either  completely  to  renounce  the  use  of  explosive 
bullets  or  to  use  only  those  with  percussion  caps  which 
exploded  only  on  contact  with  a  hard  substance.  The  idea 
of  the  Minister  was  approved  by  the  Emperor,  who,  to 
give  it  wider  application,  convoked  a  conference  of  the 
powers  at  St.  Petersburg.5 

*Moynier,  pp.  313-314. 
5  Ibid.,  pp.  314-319. 


88  THE  GENEVA  CONVENTION  OF  1864. 

The  International  Military  Commission. — The  Internation- 
al  Military  Commission,  as  the  Conference  called  itself, 
included  representatives  of  most  of  the  European  powers. 
and  late  in  the  session  the  representative  of  Persia  also. 
Previous  correspondence  had  shown  a  unanimous  senti- 
ment in  favor  of  the  prohibition  of  all  explosive  bullets. 
It  was  felt  that  a  rule  that  merely  distinguished  between 
different  varieties  of  them  would  be  illusory.6  Prussia 
even  wanted  to  go  further  and  extend  the  prohibition  to 
numerous  projectiles,  such  as  chain  and  bar  shot,  which 
German  writers,  especially,  had  usually  condemned.  Eng- 
land and  France,  however,  were  not  willing  to  go  into  any 
general  consideration  of  the  subject  and  so  the  matter  was 
dropped,7  although  the  request  of  Switzerland  that  inflam- 
mable bullets  be  included  in  the  prohibition  was  acceded 
to.  There  are  not  the  same  objections  to  the  use  of  ex- 
plosives in  shells  as  in  bullets,  and  so  the  prohibition  was 
confined  to  projectiles  of  less  weight  than  four  hundred 
grammes  or  fourteen  ounces  avoirdupois.  The  Declaration 
finally  drawn  up  bears  the  date  of  November  4-16,  1868. 
It  has  been  acceded  to  by  most  of  the  European  States. 

{/ 
slbid.;  pp.  319-322. 
7  Pradier-Fodere,  Droit  International  Public,  VI,  pp.  935-937. 


THE    FRANCO-GERMAN    WAR.  89 


CHAPTER  IX. 

THE   FRANCO-GERMAN    WAR. 

The  importance  of  the  Franco-German  War  in  the  devel- 
opment of  the  laws  of  war. — The  Franco-German  War  was 
prolific  of  controversies  both  as  to  law  and  as  to  fact.  Driven 
to  desperation  by  the  catastrophes  that  had  befallen  them, 
the  French  people,  or  at  least  individual  Frenchmen,  re- 
sorted to  an  irregular  warfare  which  gave  rise  to  recrimina- 
tions on  the  part  of  the  Germans  and  caused  the  war  to 
assume  a  bitterness  that  made  controversy  inevitable.  ..  Much 
of^EhlT modern  law  of  war  accordingly  dates  from  that  pe- 
riod, and  much  that  w^as  not  brought  out  directly  in  con- 
nection with  the  war  was  afterwards  developed,  especially 

at  the  Brussels  Conference  of  1874,  as  a  result  of  the  ex- 

***— —  in  Hi ii  ■n—— — ■—  i 

perience  gained  therein. 

Observance  of  the  Geneva  Convention,  the  use  of  explo- 
sive bullets  and  the  bombardment  of  towns. — In  the  Franco- 
German  war,  all  the  belligerents  were  parties  to  the  Geneva 
Convention  of  1864  and  the  St.  Petersburg  Declaration  of 
1868,  and,  as  has  been  seen,  they  adopted  the  Additional 
Articles  of  1868  as  a  modus  vivendi.  In  the  use  of  explo- 
sive bullets  and  the  bombardment  of  undefended  towns, 
there  appears  to  have  been  little  to  criticise,  although  grave 
charges  were  made  on  both  sides.  In  most  cases  of  bom- 
bardment, previous  notice  was  given  by  the  German  com- 
manders, but  in  the  bombardment  of  Paris  this  was  not  the 
case.  The  lack  of  notice  at  Paris  was  made  the  subject  of 
protest  by  the  diplomatic  corps  within  the  city1  in  answer- 
ing Avhom  Bismarck  took  the  position  that  notice  was  not 
obligatory.2  Such  a  position  would  now  be  untenable,  ex- 
cept in  cases  of  assault,  by  H.  XXVI.  The  shelling  of  the 
residence  portion  of  Paris  and  other  towns  has  been  con- 
demned on  account  of  the  misery  caused  thereby  to  non- 
combatants,  but  at  Brussels  General  Voigts-Rhetz  was  ut- 
terly opposed  to  admitting  the  illegality3  of  the  practice 

i  Archives  Diplomatiques,  1871-1872,  Vol.  IV,  p.   1340. 

2  Archives  Diplomatiques,  1871-1872.  Vol.  IV,  p.  1366. 

3  Protocol  2  of  Committee.  Pari.  Papers,  1875,  Misc.  No.   1,  p.   196. 


90  THE   FRANCO-GERMAN    WAR. 

and  there  is  little  reason  to  suppose  a  different  view  will 
be  taken  in  the  future  in  view  of  its  effectiveness. 

Employment  of  savage  troops. — The  question  of  the  use 
of  savage  or  semi-civilized  troops  has  arisen  frequently 
in  recent  warfare,  and  it  did  here.  In  his  note  of  January 
9,  1871,  Bismarck  gave  instances  of  cruelties  committed  by 
the  Algerian  troops  who  formed  a  small  part  of  the  French 
army4  and  Count  Chaudordy's  reply  was  unsatisfactory.5 
Rolin-Jaequemyns,  the  most  impartial  commentator  on  the 
events  of  the  war,  condemns  in  severe  terms  their  use  then, 
as  in  1859.6  Calvo,  who  is  inclined  to  be  favorable  to  the 
French,  on  the  other  hand,  thinks  it  contestable  that  the 
French  Government  allowed  any  of  the  improper  practices 
to  which  the  Africans  were  accustomed  in  their  own  war- 
fare, as  those  who  had  been  enrolled  had  come  constantly 
in  contact  with  French  soldiers,  were  commanded  by  French 
officers  and  subject  to  the  same  discipline  as  the  rest  of 
the  army.7 

The  francs-tireurs. — But  of  far  more  importance  than  the 
question  as  to  whether  the  Algerians  were  entitled  to  the 
quality  of  soldiers  was  the  question  whether  the  francs- 
tireurs  were.     After  the  first  disasters  the  French  Govern- 
ment took  steps  to  increase  the  strength  of  the  army,  and 
with  this  end  in  view  authorized  the  organization  of  corps 
of  francs-tireurs,  detached  bodies  which  should  act  on  the 
flank  and  rear  of  the  enemy  and  thus  threaten  his  lines 
of  communication,  keep  a  considerable  body  of  the  enemy 
from  the  front,  and  annoy  him  generally.    Where  a  nation 
is  fighting  a  war  to  the  death,  say  for  national  existence, 
guerilla  fighting  of  this  kind  may  be  even  to  the  highest 
degree  commendable,  but  otherwise  experience  would  seem 
to  teach  that  it  is  very  much  to  be  deplored.     The  experi- 
ence with  the  francs-tireurs  seems  to  have  been  the  same 
as  that  with  the  Partisan  Rangers  of  the  South.    They  were 
more  of  a  scourge  to  friend  than  to  foe,  and  were  the  cause 
of  innumerable  acts  of  irregularity  done  in  their  name  and 
often  amounting  to  crimes,  which  gave  rise  to  strong  re- 
criminations on  the  part  of  the  Germans  and  resulted  in 

4  Archives  Diplomatiques,   1871-1872,  IV,   p.    1322. 
e  Ibid.,  p.    1408. 

6  Kevue  de  Droit  International,  II,  659. 

7  Calvo,  Le  Droit  International,  IV,  139. 


FRANG-TIREURS.  .  91 

the  war  assuming  a  character  of  bitterness  which  it  need 
never  have  taken  on. 

German  proclamation  as  to  franc-tireurs. — The  following 
proclamation  was  early  published  by  the  German  forces 
in  the  regions  occupied  by  them  in  France : 

"The  commander-in-chief  hereby  notifies  the  inhabitants 
of  the  arrondissement  that  a  prisoner  to  be  treated  as  a 
prisoner  of  war  ought  to  make  good  his  quality  as  a  French 
soldier  by  establishing  that,  by  an  order  emanating  from 
legal  authority  and  addressed  to  his  person,  he  has  been 
called  to  the  service  and  enrolled  on  the  lists  of  a  corps 
militarily  organized  by  the  French  Government.  At  the 
same  time  his  quality  of  soldier,  he  being  a  part  of  the  ac- 
tive army,  ought  to  be  indicated  by  military  and  uniform 
insignia,  inseparable  and  recognizable  by  the  naked  eye 
at  rifle  shot. 

"The  individuals  who  have  taken  up  arms  without  hav- 
ing complied  with  the  conditions  above  cited,  will  not  be 
considered  as  prisoners  of  war.  They  will  be  judged  by 
a  council  of  war,  and  unless  they  have  rendered  themselves 
culpable  of  action  which  carries  with  it  a  more  severe  pen- 
alty, will  be  condemned  to  ten  years  of  hard  labor  and 
detained  in  Germany  till  the  expiration  of  the  sentence.  "s 

The  corresponding  provisions  of  The  Hague  Regulations. 
— The  first  paragraph  of  this  proclamation  covers  the  same 
ground  as  the  first  two  clauses  of  Article  I  of  The  Hague 
Regulations.    These  are: 

"The  laws,  rights,  and  duties  of  war  apply,  not  only  to 
the  army,  but  also  to  militia  and  to  corps  of  volunteers, 
which  satisfy  the  following  requirements: 

"1.  That  of  being  commanded  by  a  person  responsible 
for  his  subordinates ; 

"2.  That  of  having  a  distinctive  mark,  fixed  and  recog- 
nizable at  a  distance." 

The  German  proclamation  went  further  than  The  Hague 
Regulations  would  allow. — As  tested  by  this  later  standard, 
the  German  proclamation  certainly  demanded  too  much. 
In  accordance  with  the  theory  that  fighting  should  be  con- 
fined to  the  authorized  forces  of  the  two  belligerents,  it 
required  the  authorization  of  the  French  Government  and 
a  call  to  service  from  it  addressed  to  the  individual  him- 

8  Revue  de  Droit  International,  II,  663. 


V 


92  THE   FRANCO-GERMAN   AVAR. 

self.  Similar  requirements  were  proposed  at  the  Brussels 
Conference  in  1874,  but  there  the  injustice  of  such  require- 
ments in  a  section  of  the  country  cut  off  from  the  central 
authorities  was  pointed  out,  and  the  requirement  of  com- 
mand by  a  person  responsible  for  his  subordinates  was 
adopted  instead.  Such  person  need  not  be  a  military  offi- 
cer, but  may  be  any  one,  who,  through  official  position  or 
influence  in  the  community,  can  be  effectively  held  to  ac- 
count for  the  misdeeds  of  those  under  him. 

The  main  point  of  controversy  as  to  the  francs-tireurs 
one  of  fact. — As  to  the  uniforms  of  the  francs-tireurs,  Bis- 
marck claimed  that  the  blue  blouse  they  wore  was  the 
national  costume  and  that  the  red  cross  on  the  arm  was 
only  discernible  at  a  short  distance,  and  could  be  instantly 
taken  off  and  replaced,  so  that  it  became  impossible  for 
the  Prussian  troops  to  distinguish  combatants  from  non- 
combatants.  The  French  authorities  denied  that  any  such 
confusion  could  in  good  faith  arise,9  so  that  we  have  on 
this  point  a  square  issue  of  fact  which  it  is  impossible 
for  us  to  decide.  If  Bismarck's  claim  was  correct,  the 
Germans  were  justified  in  many  of  the  severer  measures 
they  took  later  in  the  war,  while,  if  the  contention  of  the 
French  authorities  was  correct,  they  were  not.  The  prob- 
abilities are  that  the  organization  of  the  francs-tireurs  was 
one  of  those  measures  ' '  in  the  twilight  zone ' '  between  what 
was  permissible  and  what  was  not  permissible,  and  so 
led  to  the  inevitable  controversies  and  bitterness  which  all 
such  measures  produce.  Except  in  the  utmost  straits  they 
should  never  be  resorted  to.  The  requirement  that  the 
soldier  should  be  distinguishable  as  such  by  the  naked  eye 
at  rifle  shot  would  not  be  recognized  today.  As  Hall  says, 
with  our  modern  guns,  it  would  require  not  only  a  uniform 
but  a  conspicuous  one.10 

The  Germans  apparently  did  not  resort  to  fictitious  oc- 
cupation.— It  has  sometimes  been  said  that  the  Germans 
resorted  to  fictitious  occupation;  that  they  claimed  the  au- 
thority of  the  occupant  where  they  had  not  the  force  to 
support  it;  and  that  the  Brussels  Declaration  was  a  con- 
demnation of  their  action.  None  of  these  assertions  can 
be  shown  to  be  well  founded.     It  is  true  that  occupation 

9  Archives  Diplomatiques,  II,  436. 
io  Hall,  International  Law,  544. 


FLYING    COLUMNS.  93 

was  established  by  flying  columns,  and  that  one  could  go 
for  miles  within  occupied  territory  without  seeing  a  single 
Prussian  soldier,  but  the  test  of  effective  occupation  is  the 
ability  to  suppress  insurrection  and  not  the  visible  pres- 
ence of  the  occupant  everywhere  within  the  occupied  ter- 
ritory. Subjected  to  this  test,  the  German  occupation  was 
not,  at  any  rate,  shown  to  be  ineffective,  as  no  successful 
uprisings  occurred. 

Their  conduct  in  this  regard  was  not  condemned  by  the 
Brussels  Conference. — Nor  did  the  Brussels  Conference  con- 
demn the  German  action.  It  is  probably  the  case  that 
the  position  that  General  Voigts-Rhetz,  the  German  repre- 
sentative at  that  Conference,  took,  was  in  line  with  the 
German  action  during  the  war,  but  it  is  a  mistake  to  sup- 
pose that  he  contended  that  occupation  need  not  be  ef- 
fective. He  was  as  thoroughly  in  accord  with  the  article 
of  the  Declaration  requiring  occupation  to  be  effective  as 
were  the  other  delegates.  "What  he  objected  to  was  the 
attempt  to  treat  military  occupation  as  analogous  to  block- 
ade, and  in  this  he  was  apparently  right.11 

The  Germans  did  go  too  far,  however,  in  requiring  the 
cooperation  of  the  inhabitants  in  the  prevention  of  such 
acts  as  the  escape  of  persons  intending  to  join  the  French 
army  from  the  occupied  territory. — It  is  entirely  proper 
to  require  the  cooperation  of  the  inhabitants  and  local 
authorities  of  occupied  territory  in  the  suppression  of  acts 
of  lawlessness,  even  though  such  acts  be  committed  with 
patriotic  intent.  It  is  also  proper  for  the  occupant  to  take 
measures  to  prevent  the  enemy  from  deriving  support  from 
the  occupied  territory,  either  in  supplies  or  men.  But  it 
is  not  proper  for  the  occupant  to  require  the  cooperation 
of  the  inhabitants  in  this  latter  case  as  in  the  former.  Acts 
of  lawlessness  are  directed  against  society  itself,  and  it 
is  even  more  to  the  interest  of  the  inhabitants  than  to  that 
of  the  occupant  that  they  should  be  suppressed,  while  acts 
such  as  quitting  the  occupied  territory  to  join  the  national 
army,  do  not  affect  society,  are  prompted  by  the  highest 
motives,  and  are  prohibited  only  because  they  are  inimical 
to  the  interests  of  the  occupant.  To  require  l^he  cooperation 
of  the  inhabitants  in  the  suppression  of  such  acts  would 
do  violence  to  every  feeling  of  patriotism.     Accordingly, 

11  See  infra,  p.  106. 


9-A  THE    FRANCO-GERMAN   WAR. 

requirements  such  as  were  made  by  the  Germans,  that 
mayors  should  furnish  lists  of  persons  liable  to  serve  in 
the  French  army,  so  that  those  joining  might  be  punished/2 
went  beyond  the  proper  bounds  of  the  occupant's  authority. 

The  burning  of  houses  or  villages  as  a  penal  measure  is 
to  be  generally  condemned. — Much  complaint  was  caused 
during  the  war  by  the  frequency  with  which  the  burning 
of  houses  and  even  of  whole  villages  was  resorted  to.  As 
punishment  for  the  most  severe  offenses,  it  is  possible  that 
such  burning  may  sometimes  be  justified,  but,  if  there  is 
one  lesson  taught  by  the  Franco-German  war  and  the  South 
African  war  alike,  it  is  that  such  a  practice,  instead  of 
curing  evils,  makes  them  tenfold  more  virulent.  Driven 
to  desperation  by  the  loss  of  all  they  possess,  they  who 
suffer  become  apostles  of  revenge  and  put  new  life  in  a 
struggle  in  which  they  have  now  no  more  to  lose.  Once 
entered  upon,  the  policy  of  burning  becomes  so  easy  and 
the  exasperations  that  prompt  it  become  so  multiplied,  that 
until  the  end  of  the  wTar  outrage  and  violence  are  inevitable. 

The  placing  of  notables  on  trains  to  protect  the  trains 
from  hostilities. — Another  measure  which  has  called  forth 
much  criticism  was  the  use  made  by  the  Germans  of  notable 
citizens  on  railroad  trains  in  order  to  protect  them  from 
acts  of  hostility.  It  has  been  claimed  on  analogy  to  the 
case  of  hostages,  against  whom  violence  cannot  be  used, 
that  this  was  improper ;  but  the  case  is  quite  different.  The 
punishment  of  hostages  would  be  a  punitive  measure  while 
the  use  of  citizens  in  this  way  was  a  preventative  measure 
and  a  most  effective  one.  Granted  that  the  acts  against  the 
railroads  were  unlawful,  the  measure  would  not  seem  to 
have  been  an  unduly  harsh  one.  But  there  lay  the  diffi- 
culty. Such  acts  were  not  unlawful  when  committed  by 
the  regular  forces,  so  that  if  the  francs-tireurs  were  to  be 
considered  as  regular  forces,  the  measure  was  an  improper 
one,  and  it  was  against  them  primarily  that  it  was  aimed. 
Like  so  many  other  questions  of  the  war,  it  turned  on 
whether  or  not  the  francs-tireurs  were  entitled  to  the  qual- 
ity of  soldiers. 

The  provision  in  the  German  Military  Penal  Code  as  to 
the  necessity  of  trials. — The  Germans  themselves  rendered 
impossible  the  repetition   by  their  officers  of  such  orders 

12  Archives  Diplomatiques,   IV,    1201. 


PENAL    MEASURES.  95 

as  that  of  August  31,  1870,  in  which  the  commanding  gen- 
eral declared  that  francs-tireurs  and  other  individuals  com- 
mitting flagrant  acts  of  hostility  should  be  hung  or  shot 
without  process,13  by  the  German  Military  Penal  Code  of 
1872,  which  provided  that,  for  the  infliction  of  all  penalties 
provided  for  by  the  Code,  a  judicial  proceeding  should  be 
necessary.14 

Severity  against  persons  attempting  to  join  the  French 
army. — Perhaps  the  most  severe  decree  the  Germans  is- 
sued was  that  declaring  that  inhabitants  of  Alsace  and 
Lorraine  joining  the  French  army  should  suffer  the  con- 
fiscation of  their  goods  and  ten  years'  banishment,  and 
that  absence  from  home  for  eight  days  without  permission 
should  be  conclusive  as  to  enrollment.  This  decree  was 
published  late  in  the  war.  It  was  condemned  as  excessive 
by  the  able  German  writer,  Loening,  who  says  that  only 
five  condemnations  were  enforced  under  it.15  Rolin  Jae- 
quemyns  criticises  the  decree,  first,  on  the  ground  of  the 
general  odiousness  of  confiscation,  and  second,  on  the 
ground  that  it  rendered  liable  to  punishment  those  who  had 
succeeded  in  making  their  escape  from  the  occupied  ter- 
ritory and  had  thus  wiped  out  their  offense  by  its  success- 
ful consummation  on  the  analogy  to  spying  and  blockade 
running.16     Both  criticisms  appear  to  be  sound.17 

Treatment  of  persons  residing  in  the  territory  of  the  op- 
posing belligerent  at  the  outbreak  of  war. — At  the  begin- 
ning of  the  war  each  government  manifested  a  general 
intention  to  allow  the  subjects  of  the  other,  residing  in  its 
territory,  to  remain  during  good  behavior.  Measures  were 
even  taken  in  France  to  prevent  the  withdrawal  of  Ger- 
mans liable  to  active  military  service.  The  feeling  against 
German  spies,  however,  soon  ran  so  high  that  finally,  on 
very  short  notice,  all  the  Germans  in  the  Department  of 
the  Seine  were  required  to  leave  France  or  to  retire  south 
of  the  Loire.18  The  act  was  one  very  much  to  be  deplored, 
but  it  was  not  altogether  unnatural  under  the  circum- 
stances. 

is  Archives  Diplomatiques,  IV,  1163. 

i*  Revue  de  Droit  International,  V,  83-84. 

is  Revue  de  Droit  International,  V,  84,  et  seq. 

i6  Revue  de  Droit  International,  III.  p.  516,  et  seq. 

i7  See  infra,  p.  303. 

is  Archives  Diplomatique,   II,  425. 


96  THE    FRANCO-GERMAN    WAR. 

Treatment  of  balloonists. — The  question  of  balloonists 
gave  rise  to  much  controversy.  Bismarck  threatened  to 
treat  them  as  spies,  on  account  of  the  intelligence  they 
were  able  to  obtain,  but  he  does  not  appear  to  have  car- 
ried his  threats  into  execution.  H  XXIX  does  not  spe- 
cifically cover  the  case  of  balloonists  sent  to  obtain  infor- 
mation, but  by  making  the  obtaining  of  information  within 
the  lines  of  the  enemy  secretly,  the  gist  of  spying  it  makes 
Bismarck's  position  no  longer  tenable. 

Use  of  requisitions  and  contributions. — In  providing  for 
the  army  the  Germans  made  extensive  use  of  requisitions 
and  contributions.  Feraud-Giraud  cites  a  report  to  the 
French  Minister  of  Foreign  Affairs  in  which  it  is  stated 
that  war  contributions  levied  by  the  Germans  amounted 
to  39,000,000  francs,  the  taxes  collected  by  them  to  49,000,- 
000,  and  the  requisitions  to  327,000,000.in 

Nor  did  this  take  into  consideration  the  contribution  of 
200,000,000  francs  charged  to  the  city  of  Paris  in  the 
armistice  of  January  28. 20  The  levying  of  these  contribu- 
tions and  requisitions  raised  a  great  outcry  in  England, 
but  the  general  principle  involved  in  them  has  been  ap- 
proved by  The  Hague  Conferences.  It  could  never  have 
been  atacked,  save  through  the  inadmissible  theory  that 
private  citizens  are  not  to  bear  any  of  the  direct  burdens 
of  war. 

Treatment  of  French  forests. — The  treatment  of  the 
French  forests  by  the  German  authorities  has  often  been 
condemned,  but,  as  it  would  appear,  unjustly.  The 
unfavorable  opinion  has  been  based  on  a  decision  in 
which  the  Court  of  Cassation  enunciated  the  broad,  gen- 
eral doctrine  that  large  trees  which  nature  and  legislation 
had  assimilated  to  the  domain  itself  should  not  be  cut  by 
the  occupant.21  This  was  the  position  taken  by  the  Aus- 
trian delegate  at  Brussels,  but  his  contention  that  the  large 
trees  should  not  be  cut  at  all  was  overruled,22  and  the  work 
of  the  Brussels  Conference  in  this  respect  was  ratified  at 
The  Hague.     The  occupant  now  has  the  rights  of  a  usu- 

i°  Feraud-Giraud,  Recours   a   Raison  des  Dommages   Causes  par  la 
Guerre,  Sec.  32. 

20  Archives  Diplomatiques,  TV,  1422. 

2i  Feraud-Giraud,  Sec.  27. 

22  Protocol  12  of  the  Committee  and  4  of  the  Full  Conference. 


EXPLOITATION  OF  FRENCH  FORESTS.  97 

fructuary,  and  may  cut  such  of  the  large  trees  as  are  marked 
for  the  purpose  by  the  regular  authorities;  or,  where  that 
is  impossible,  he  may  follow  any  rules  of  good  forest  ad- 
ministration. 

The  German  Government  did  not  subsequently  admit  that 
it  had  gone  beyond  its  rights  in  the  treatment  of  the  French 
forests. — It  has  sometimes  been  suggested  that  the  German 
authorities  afterwards  admitted  that  they  had  gone  beyond 
their  rights,  because  they  did  not  interfere  to  secure  to 
the  contractors  wood  which,  though  cut  during  the  occu- 
pation, had  not  been  carried  away  at  its  termination.  But 
the  ground  of  their  action  evidently  was  that  the  occupant 
is  a  de  facto  authority ;  that  he  has  the  right  to  appropriate 
some  forms  of  public  property,  but  has  not  the  title  thereto ; 
and  that,  if  his  appropriation  is  not  complete  at  the  termi- 
nation of  the  occupation,  all  his  right  to  the  property  then 
ceases.  Of  course,  if  the  occupant  himself  has  no  right  to 
complete  the  appropriation  of  property  after  occupation 
is  over,  he  can  give  no  such  right  to  a  third  party.  Ex- 
ecutory contracts  for  the  exploitation  of  the  public  domain 
must,  therefore,  cease  to  be  operative  with  the  occupation 
itself. 

The  weight  of  authority  shows  that  the  Germans  acted 
within  their  rights. — As  the  opinion  adverse  to  the  action 
of  the  Germans  has  been  almost  wholly  based  on  the  de- 
cision of  the  French  court,  the  invalidating  of  the  prin- 
ciple of  that  decision  by  the  subsequent  action  at  Brussels 
and  The  Hague  leaves  practically  no  authority  for  such 
opinion.  On  the  other  hand,  Loening  and  Bluntschli, 
both  of  whom,  although  Germans,  were  free  in  their  criti- 
cism of  German  conduct,  consider  that  the  action  of  the 
Germans  in  the  management  of  the  French  forests  was  a 
model  of  what  the  forest  administration  of  an  occupant 
should  be.  Loening  was  a  professor  at  the  University  of 
Strasburg,  and  so  had  exceptional  means  of  knowing  the 
truth.  He  said  that  he  had  authentic  information  that 
the  number  of  mature  trees  cut  by  the  Germans  was  not 
greater  than  the  French  had  planned  to  cut  themselves, 
although  they  were  not  in  all  cases  the  same.24 

Treatment  of  private  property  at  sea. — Early  in  the  war 

23  Bluntschli,  Le  Droit  International  Codifie,  Sec.  646. 
2*  Revue  de  Droit  International,  V,  104. 

7 


3 


98  THE   FRANCO-GERMAN   WAR. 

the  Germans  announced  their  intention  to  respect  private 
property  at  sea,  but  there  the  French  were  the  more  .pow- 
erful and  they  refused  to  reciprocate.  On  their  making 
the  captains  of  certain  merchant  ships  prisoners,  the  Ger- 
man authorities  resorted  to  reprisals  and  seized  prominent 
citizens  of  different  towns  as  hostages.  This  action  of  the 
German  authorities  was  improper,  as  the  legality  of  the 
French  action  is  unquestionable.25  The  organization  of  a 
volunteer  navy  by  Prussia  gave  rise  to  the  question  as  to 
just  what  wTas  meant  in  the  Declaration  of  Paris  by  the 
abolition  of  privateering.  That  question  is  now  the  sub- 
ject of  a  Convention  drawn  up  at  the  Second  Peace  Con- 
ference.26 

Treatment  of  prisoners  of  war. — Although  there  were 
occasional  charges  of  the  ill-treatment  of  prisoners  of 
war,  the  care  taken  of  them  on  both  sides  was  very  com- 
mendable. In  Germany  postal  cards  were  distributed  to 
the  soldiers,  a  bureau  of  information  was  established  to 
give  information  as  to  officers,  and  lists  of  prisoners  were 
prepared,  by  order  of  the  Minister  of  War.  In  addition 
private  committees  saw  to  the  distribution  of  reading  mat- 
ter, and  established  a  bureau  for  the  forwarding  of  letters 
to  the  sick  and  wounded,  and  for  furnishing  information 
about  them  to  their  friends  and  relatives.27 

Administration  of  occupied  territory. — Early  in  the  war 
the  Germans  established  seats  of  government  for  Alsace 
at  Strasburg  and  for  Lorraine  at  Nancy.  Then  a  third 
government  was  established  at  Versailles  and  finally  in 
December  a  fourth  at  Rheims.28  Over  each  division  was 
placed  a  military  governor-general  with  a  civil  commis- 
sioner as  associate.29  The  municipalities  in  general  con- 
tinued their  functions  during  the  war,  but  the  employees 
of  other  services  generally  refused  to  serve  under  th<?  en- 
emy, so  that  in  the  Railroad  and  Postoffice  Departments 
the  Germans  had  to  take  the  whole  administration  of  af- 
fairs on  their  own  shoulders,  and  in  levying  taxes  could 
only  roughly  approximate  what  the  amount  of  the  taxes 

25  Rolin-Jaequemyns  Revue  de  Droit  International,  III,  339. 

26  See  infra,  p.  235. 

27  Rolin-Jaequemyns,  Revue  de  Droit  International,  II    (1870),  p. 
689,  et  seq. 

28  Brenet,  p.  146. 
29 II  R.  D.  I.,  691. 


ADMINISTRATION.  99 

would  have  been.  After  the  fall  of  Napoleon  III  the  Ger- 
mans, in  their  desire  to  avoid  recognition  of  the  provisional 
government  in  France,  refused  to  permit  the  courts  to  dis- 
charge their  functions  except  in  the  name  of  the  Emperor, 
with  the  result  that  most  of  the  courts  declined  to  act; 
for,  being  required  by  law  to  exercise  their  powers  in  the 
name  of  the  sovereign,  they  felt  that  Napoleon  III  was 
no  longer  to  be  considered  as  holding  that  place.30  It  is 
much  to  be  regretted  that  the  German  authorities  did  not 
devise  some  means  of  enabling  the  courts  to  act  in  con- 
formity with  their  sense  of  legal  obligation,  without  ap- 
pearing on  their  own  part  to  recognize  the  provisional 
government. 

so  Bray,  Le  Droit,  etc.,  p.  311,  et  seq. 


100  THE    CODIFICATION    OF    THE    LAW   OF   WAR. 


CHAPTER  X. 

THE  CODIFICATION   OF  THE  LAW  OF  WAR. 

The  organization  of  the  Institute  of  International  Law. 

— Not  long  after  peace  between  France  and  Germany  had 
been  declared,  Dr.  Lieber,  in  a  letter  to  Rolin-Jaequemyns, 
founder  and  editor-in-chief  of  the  Revue  de  Droit  Inter- 
national, suggested  the  organization  of  an  institution  which 
should  include  among  its  members  the  leading  exponents 
of  International  Law.  About  the  same  time  Gustave  Moyn- 
ier  and  Bluntschli  made  similar  recommendations.  Rolin- 
Jaequemyns  acted  on  the  suggestion,  and  in  March,  1873, 
sent  invitations  to  representative  jurists.  In  September 
eleven  of  these  met  at  Ghent  and  founded  the  Institute  of 
International  Law.  M.  E.  de  Laveleye,  in  a  memoir  which 
he  wraEe~on  the  occasion,  declared  the  object  of  the  In- 
stitute to  be  the  collective  scientific  investigation  of  the 
rules  of  justice  which  should  seem  to  the  members  to  be 
the  rightful  base  of  the  relations  of  people  to  people.1 

The  Institute  cannot  have  a  session  oftener  than  once 
a  year,  nor  can  the  interval  between  sessions  be  more  than 
two  years.  At  each  session  the  Institute  designates  the 
place  and  time  of  the  next.  It  is  composed  of  members, 
associates  and  honorary  members,  the  members  not  ex- 
ceeding sixty  and  being  chosen  by  the  Institute  from  among 
the  associates.2  The  first  annual  .meeting  was  held  at 
Geneva  in  1874,  and  meetings  have  since  been  held  at  The 
Hague  (twice),  Zurich,  Paris  (twice),  Brussels  (thrice), 
Oxford,  Turin,  Munich,  Heidelberg,  Lausanne,  Hamburg, 
Geneva,  Cambridge,  Venice,  Copenhagen,  Neuchatel  and 
Ghent.  The  office  of  President  has  been  held  by  M.  M. 
Mancini,  of  Rome;  Bluntschli,  of  Heidelberg;  de  Parieu,  of 
Paris ;  Rolin-Jaequemyns,  of  Ghent ;  Bernard,  of  Oxford, 
Pierantoni,  of  Rome ;  von  Holzendorff ,  of  Munich ;  von 
Bulmerincq,  of  Heidelberg;  Rivier,  of  Brussels;  von  Bar, 

i  Holland,  Studies  in  Inter.  Law,  p.  88. 

2Annuaire,  XIX,  Articles  II,  III,  IV  of  the  statutes. 


INSTITUTE  OF  INTERNATIONAL  LAW.  101 

of  Gijttingen ;  Moynier,  of  Geneva ;  Renault,  of  Paris ;  West- 
lake,  of  Cambridge;  Brusa,  of  Turin;  Goos,  of  Copenhagen; 
Ass£r,  of  The  Hague;  Lardy,  of  Paris;  Descamps,  of  Lou- 
vain  ;  Lord  Reay,  of  London ;  and  Alberic  Rolin,  of  Ghent.3 
The  next  meeting  is  to  be  held  in  Florence,  in  1908,  under 
the  presidency  of  Gabba,  of  Pisa.  The  indirect  influence  of 
such  an  association  must  almost  necessarily  be  even  greater 
than  its  direct.  The  personal  contact  of  the  leaders  of  inter- 
national juristic  thought  can  hardly  help  being  a  powerful 
factor  in  the  development  of  common  ideas  of  right  and 
duty. 

First  steps  towards  the  Brussels  Conference. — In  March, 
1874,  Count  de  Houdetot,  President  of  the  Society  for  the 
Amelioration  of  the  Condition  of  Prisoners  of  War,  which 
had  been  formed  in  Paris,  in  1872,  communicated  with  the 
diplomatic  representatives  of  the  various  countries  at  Paris, 
requesting  that  delegates  be  sent  to  a  Conference  to  be 
held  in  Paris,  in  May,  1874,  to  consider  means  for  allevi- 
ating the  condition  of  prisoners  of  war  and  to  prepare  the 
way  for  an  official  Congress,  which  should  formulate  an 
international  treaty.  He  was  evidently  following  the 
course  which  had  led  successfully  to  the  Geneva  Conven- 
tion.4 

Action  of  the  Russian  Government. — Little  would  prob- 
ably have  come  of  this,  as  the  Earl  of  Derby,  then  British 
Foreign  Secretary,  had  determined  not  to  take  any  such 
action  on  the  initiative  of  a  private  society,5  if  the  Rus- 
sian Government  had  not  stepped  in  and  carried  on  the 
undertaking.  Alexander  II  had  already  given  orders  that 
a  project  be  drawn  up  covering  practically  the  entire  war 
practice  on  land,  when  the  French  society  came  forward 
with  its  scheme.6  At  the  suggestion  of  the  Russian  Minis- 
ter of  Foreign  Affairs,  Count  de  Houdetot  consented  to 
the  absorption  of  the  project  of  his  society  into  the  greater 
one  of  the  Russian  Emperor,  and  the  movement  was  there- 
after carried  on  by  the  Russian  Government.  The  project 
which  the  latter  submitted  was  drawn  up  with  great  care 
and  ability,  beginning  with  a  declaration  of  general  prin- 

3  Holland,  Studies,  p.  89,  adapted. 

4  Pari.  Papers,  1874,  Misc.  No.  1,  pp.  1-3,  17-18. 

5  Ibid.,  p.  19. 
elbid.,  p.  21. 


102  THE    CODIFICATION    OE    THE    LAW    OF    WAR. 

ciples  and  then  proceeding  to  the  statement  of  detailed 
rules. 

Attitude  of  the  British  Government. — It  was  from  Great 
Britain  that  the  least  cooperation  was  to  be  expected.  The 
father  of  the  Earl  of  Derby  had  been  one  of  the  leaders  in 
the  opposition  to  the  Declaration  of  Paris,  and,  even  with- 
out this  personal  equation  the  criticism  to  which  that 
measure  had  been  subjected  in  England  was  calculated  to 
make  a  British  official  wary  of  assenting  to  any  limitation 
of  belligerent  action.  Before  committing  his  government, 
Lord  Derby  sent  a  long  despatch  to  Lord  Loftus,  at  St. 
Petersburg,  in  which,  while  expressing  his  sympathy  with 
the  feelings  of  humanity  which  had  moved  his  Imperial 
Majesty,  he  said  that  the  British  Government  was  not  con- 
vinced of  the  practical  necessity  for  such  a  scheme  for  the 
guidance  of  military  commanders  in  the  field  and  feared 
that  the  Conference  might  give  rise  to  the  discussion  of 
questions  which  would  lead  to  recriminations  between  the 
delegates.  He  intimated,  however,  that  the  British  Gov- 
ernment since  it  was  desirous  of  joining  in  any  measure 
which  would  prevent  unnecessary  suffering,  would  not  ob- 
ject to  the  Conference,  if  there  should  be  no  discussion  of 
the  general  principles  as  to  the  relations  between  bel- 
ligerents and  no  attempt  to  undertake  new  obligations 
with  regard  to  such  general  principles.7  Lord  Derby  stated 
that  he  must  require  the  assurance  of  every  government 
that  naval  matters  would  not  be  discussed.8  Such  an  as- 
surance having  been  given,  Major-General  Horsford  was 
appointed  as  a  military  delegate,  Great  Britain  following 
the  example  of  the  German  Empire9  in  not  sending  a  dip- 
lomatic representation  with  full  powers,  but  merely  a  mili- 
tary delegate,  so  that  the  action  of  the  government  should 
in  no  way  be  forestalled.10 

Practically  all  Europe  was  represented  in  the  Confer- 
ence before  the  close  of  its  sessions.  The  United  States 
declined  its  invitation,  as  coming  too  late.11  ^The  first  meet- 


ing  was  held__on  July  27,  and  Baron  Jomini,^the~UussiaD 


t  Ibid.,  p.  27. 

&Ibid.,  p.  28. 

oibid.,  p.  24. 

io  Pari.  Papers,  1874,  No.  2,  p.  19. 

ii  Ibid.,  p.  8. 


BRUSSELS  CONFERENCE  OF  1874.  103 

diplomatic  delegate,  and  son  of  the  famous  author  of  the 
Art  of  War,  was  elected  President.12 

Rules  adopted  by  the  Conference. — At  his  suggestion  it 
was  agreed  that  only  those  points  should  he  entered  in  the 
Protocol  on  which  opinion  was  unanimous,  and  that  no 
mention  should  be  made  of  divergence  of  opinion,  with 
the  reservation  that  if  a  delegate  should  express  a  wish 
that  some  special  position  should  be  noted  his  wish  should 
be  complied  with.13  This  rule  was  observed  during  the 
earlier  discussions,  in  which  only  comparatively  slight  dif- 
ferences of  view  were  exhibited;  but,  when  the  more  con- 
troverted points  came  to  be  discussed,  it  was  felt  that,  as  the 
Conference  was  only  preparing  the  way  for  a  future  agree- 
ment, it  would  be  best  to  enter  in  the  Protocols  the  various 
positions  advanced  so  that  the  governments  might  be  able 
to  act  upon  the  final  Declaration  with  full  knowledge  of 
the  bearings  of  the  rules  laid  down.14  It  is  unfortunate 
that  this  mode  of  procedure  did  not  prevail  from  the  first, 
as  the  discussions  on  the  later  points  furnish  an  invaluable 
commentary  on  the  text.  That  it  did  not  was  probably 
due  to  the  feeling  that  is  sometimes  manifested  against  the 
publication  of  dissenting  opinions  by  Supreme  Court  Judges, 
on  the  ground  that  they  detract  from  the  authority  of  the 
court  and  of  the  decision.  The  departure  from  the  original 
procedure  was,  however,  in  one  way  unfortunate,  in  that 
it  furnished  to  Lord  Derby's  mind  indubitable  proof  that 
applications  of  principles  not  generally  recognized  had  been 
introduced  into  the  Declaration,  and  thus  led  the  way  to 
Great  Britain's  final  refusal  to  ratify  the  acts  of  the  Con- 
ference.15 Another  rule  of  the  Conference  was  that  the 
proceedings  should  be  secret.16  This  was  faithfully  ob- 
served till  within  a  few  days  of  the  end  of  the  Conference, 
when  a  partial  garbled  account  of  the  proceedings  appeared 
in  a  French  newspaper.17 

The  organization  of  the  Conference. — It  was  at  first  pro- 
posed that  two  committees  should  be  appointed,  one  mili- 

12  Pari.  Papers,  1875,  Misc.  No.  1,  Protocol  No.  1  of  the  Full  Con- 
ference, 
is  Ibid. 

i-t  Protocol  12  of  the  Committee;  Protocol  4  of  the  Full  Conference. 
is  Pari.  Papers,  1875,  Misc.  No.  2,  p.  4. 
is  Ibid.,  Misc.  No.  1,  Protocol  1  of  the  Full  Conference. 
17  Ibid.,  Protocol  5  of  the  Full  Conference  and  p.  157. 


\ 


104  THE    CODIFICATION    OF    THE    LAW    OF    WAR. 

tary,  the  other  diplomatic,  to  consider  in  a  preliminary 
way  the  questions  most  appropriate  to  each;  but  the  diffi- 
culty of  dividing  the  work  so  as  to  meet  the  requirements 
of  such  a  scheme  soon  became  evident,  and  it  was  decided 
to  have  only  one  committee,  composed  of  one  delegate  from 
each  country ;  the  military,  diplomatic  and  juristic  members 
of  each  delegation  replacing  each  other,  if  desired.18 
Throughout  the  Conference  the  military  element  greatly  pre- 
dominated, although  in  the  consideration  of  military  oc- 
cupation the  diplomatic  element  was  more  largely  repre- 
sented than  at  other  times.  M.  Lansberge,  from  The  Nether- 
lands, and  Baron  Lambermont,  from  Belgium,  were  the 
only  diplomatic  delegates  who  represented  their  countries 
regularly  on  the  Committee,  although  Baron  Jomini  had  a 
regular  place  on  it,  as  chairman.  The  diplomatic  delegates, 
however,  by  their  ability  and  force  of  conviction  largely 
overcame  the  advantage  that  the  military  delegates  had 
in  numbers. 

Rights  of  members. — The  members  of  the  Conference  not 
on  the  Committee  had  the  right  to  attend,  though  not  to 
speak  or  vote.19  As  they  must  have  been  consulted  by  the 
active  members  of  the  delegations,  their  influence  is  not 
to  be  estimated  by  the  number  of  times  their  names  ap- 
pear in  the  Protocols.  Dr.  Bluntschli,  and  later  Prof.  Mar- 
tens, were  members  of  the  Conference,  and  participated  in 
the  discussions  during  the  two  days  when  the  project  was 
before  the  whole  Conference,  but  they  were  never  members 
of  the  Committee,  and  took  no  active  part  in  its  nineteen 
sittings. 

The  original  project  drew  a  sharp  line  between  com- 
batants and  noncombatants. — The  original  Russian  project 
had  defined  certain  conditions  compliance  with  which  would 
entitle  persons  engaging  in  hostilities  to  treatment  as  pris- 
oners of  war.  It  went  further,  however,  and  declared  that 
persons  not  satisfying  these  conditions  should  be  handed 
over  to  military  justice.20  The  first  provision  standing  by 
itself  was,  on  the  whole,  not  objectionable,  as  it  merely 
stated  affirmatively  that  persons  of  a  certain  kind  should 
be   treated    as   soldiers,    without    excluding   anyone;    but, 

is  Protocol  2  of  the  Full  Conference. 

i»  Ibid. 

20  Pari.  Papers,  1874,  Misc.  No.  1,  p.  13. 


BRUSSELS  COXtfEBEXCJG  OF  1874.  105 

"  '  '     i  hi 

coupled  with  the  second,  it  created  a  hard  and  fast  rule, 
which,  if  it  had  been  in  force  in  the  past,  would  have 
handed  over  to  military  justice  perhaps  many  of  the  world's 
greatest  patriots.  The  attempt  thus  to  con  tine  war  to  the 
regular  forces  of  the  belligerents,  though  no  doubt  prompt- 
ed by  thejughejsj;  motives  of  humanity,  aroused  the  deepest 
opposition  on  the  part  of  the  delegates  from  Belgium  and 
The  Netherlands,  who  declared  at  the  first  meeting  of  the 
Committee  that,  while  they  wished  to  diminish  as  far  as 
possible  the  calamities  of  war,  they  could  consent  to  no 
provision  having  "a  tendency  either  to  weaken  national 
defense  or  to  detach  citizens  from  their  duty  towards  their 
country."21  This  declaration  was  subsequently  supported 
"lyyuie  delegates  from  Spain,  Switzerland,  Portugal  and 
Turkey.  The  British  delegate  did  not  join  in  it,  but,  by 
abstaining  from  the  discussion,  indicated  that  in  his  opinion  — ' 
it  concerned  questions  involving  principles  not  generally 
recognized. 

The  Russian  argument  in  favor  of  this. — The  Russian  dele- 
gates, on  the  other  hand,  earnestly  urged  that  the  appre- 
hensions of  the  smaller  powers  were  unfounded.  They^ 
claimed  that  the  project  left  the  right  of  defense  intact,  / 
and  that  its  only  effect  was  to  make  it  the  duty  of  each 
government  so  to  organize  its  defenders  that  in  time  of 
war  they  could  be  distinguished  as  part  of  the  regular 
military  force  and  needless  recriminations  thus  avoided.- — ' 
At  the  same  time  they  argued  that  this  was  not  only  the 
duty  of  governments  but  also  their  interest,  since  it  was 
only  organization  that  could  bring  out  a  people's  full  de- 
fensive strength.22  To  the  Russian  delegates,  as  well  as  to 
the  delegates  of  other  governments  which  had  adopted  the 
practice  of  conscription,  the  performance  of  such  a  duty 
seemed  a  slight  thing,  in  view  of  the  increased  efficiency 
it  would  give  to  national  forces  and  the  irregularities  it 
would  avoid.  To  them  it  meant  practically  nothing,  as 
they  already  had  a  far  more  complete  organization  than, 
the  proposed  rules  would  have  required:  but  thev  did  not 
reckon  with  the  opposition  that  anything  approaching  com- 
pulsory military  service  would  arouse  in  countries  like  \ 
Great  Britain. 

21  Pari.  Papers,  1875,  Misc.  No.  1  Protocol  1  of  the  Committee. 

22  Protocol  4  of  the  Full  Conference. 


106  THE    CODIFICATION    OF    THE    LAW    OF    WAR. 

As  a  result  of  the  discussion  the  negative  provisions,  ex- 
cluding from  the  category  of  belligerents  all  persons  not 
exhibiting  certain  specified  qualifications,  was  dropped.  As 
finally  drawn  up,  the  Declaration  merely  enumerated  cer- 
tain conditions  under  which  those  in  arms  should  be  en- 
titled to  treatment  as  soldiers.  These  conditions  were  very 
liberal,  and  as  it  was  expressly  understood  that  they  were 
not  to  be  treated  as  exclusive,  the  final  Declaration  was 
entirely  free  from  the  objections  that  were  urged  against 
the  original  project.23 

Treatment  of  military  occupation. — An  almost  equal  in- 
terest was  aroused  by  the  attempts  to  define  occupation 
and  to  limit  requisitions  and  contributions.  Both  these 
points  are  of  vital  importance :  the  definition  of  occupation, 
because  on  it  depends  the  beginning  and  termination  of  the 
tremendous  penal  powers  of  the  military  occupant;  the 
limitation  of  contributions  and  requisitions,  because  they 
constitute  the  heaviest  burden  the  private  citizen  has  to 
bear.  On  one  point  with  regard  to  occupation  the  Confer- 
ence was  in  entire  accord,  and  that  was  that  it  must  be 
effective,  that  is,  that  the  occupant  must  have  such  force 
under  his  control  as  to  suppress  insurrection.  The  Swiss 
and  Swedish  delegates  wished  to  make  this  definition  more 
tangible  by  assimilating  occupation  to  blockade,  but  to 
this  the  German  delegate,  as  has  been  seen,24  vigorously  ob- 
jected, not  on  the  ground  that  occupation  need  not  be  ef- 
fective, but  on  the  ground  that  unlike  blockades,  occupa- 
tion cannot  be  everywhere  visible  and  that  accordingly 
the  analogy  between  the  two  is  false.25  The  objection  was 
apparently  well  taken.  The  general  principle  of  the  neces- 
sity of  effective  control  being  established,  it  would  seem 
best  to  leave  the  application  of  the  principle  to  the  govern- 
ments concerned.  The  sanction  of  the  laws  of  war  is  so 
indefinite  that  it  is  above  all  necessary  that  the  rules  should 
not  be  arbitrary  or  technical,  but  that  they  should  be  sim- 
ple and  reasonable  and  thus  appeal  immediately  to  the 
minds  and  wills  of  the  military  commanders  to  whom  their 
observance  is  entrusted. 

The  final  limitation  of  contributions  and  requisitions  to 

23  Protocol  4  of  the  Full  Conference. 

24  Supra,  p.  93. 

25  Protocol  10  of  the  Committee. 


BRUSSELS  CONFERENCE  OF  1874.  107 

Contributions  and  requisitions  were  the  subject  of  much 
debate.  It  was  at  first  attempted  to  limit  those  which  the 
army  of  occupation  might  levy  to  what  the  army  of  the 
country  occupied  would  have  had  the  right  to  demand,  or 
to  what  the  occupying  army  would  have  had  the  right  to 
demand  in  its  own  country,  but  as  these  limitations  ap- 
peared to  be  impracticable  and  to  overlook  the  element  of 
military  necessity  they  were  both  dropped.26  It  was  fur- 
ther attempted  to  create  a  limitation  by  requiring  the  re- 
ceipts given  for  money  or  supplies  not  only  to  certify  the 
fact  of  the  taking  but  also  to  promise  indemnity.  One  ob- 
jection made  to  this  proposal  was  the  likelihood  of  its  giv- 
ing rise  to  fraud;  but  the  principal  objection  was  that,  if 
the  receipts  should  be  required  to  convey  a  pledge  of  in- 
demnity the  successful  belligerent  would  in  the  end  im- 
pose the  burden  of  payment  on  his  vanquished  antagonist, 
who  would  thus  be  compelled  to  reimburse  some  of  his 
subjects  in  full  for  requisitions  and  contributions,  possibly 
at  the  cost  of  other  subjects  who  had  suffered  loss  in  other 
ways  and  who  were  equally  entitled  to  indemnity.  It  was 
further  apprehended  that,  if  an  attempt  should  be  made 
to  equalize  the  treatment  of  the  two  classes,  by  a  ratable 
diminution  of  what  was  due  to  both,  a  pretext  would  be 
afforded  to  the  successful  belligerent  for  interfering  between 
the  vanquished  and  his  subjects.27  No  satisfactory  conclu- 
sion was  come  to  on  this  point,  and  it  was  left  to  the  un- 
written law  of  nations. 

The  attempt  to  abolish  contributions. — The  attempt  was 
also  made  to  do  away  with  contributions  altogether.  It 
was  urged  that,  while  supplies  might  be  necessary  to  the 
support  of  the  army,  there  was  not  the  same  necessity  for 
money,  as  the  army  could  take  what  supplies  it  needed 
without  payment.  But  it  was  pointed  out  that  a  rule  by 
which  supplies  could  be  taken  but  not  money  would  work 
greater  hardship  than  it  would  avoid,  by  confining  levies 
to  nearby  districts  from  which  supplies  could  easily  be 
transported  and  by  casting  on  agricultural  districts  burdens 
which  rich  cities  would  often  be  better  able  to  bear.28 

The  final  limitation  of  contributions  and  requisitions  to 

26  Protocol  15  and  16  of  the  Committee. 

27  Ibid. 

28  Protocol   16  of  the  Committee;  see  infra,  p.  315. 


108  THE    CODIFICATION    OF    THE    LAW    OF    WAR. 

the  necessities  of  war. — As  a  result  of  the  discussion,  it 
was  provisionally  agreed  that  both  contributions  and  requi- 
sitions might  be  levied,  but  that  they  should  be  limited  to 
the  necessities  of  the  war.  By  those  who  had  been  most 
anxious  to  check  altogether  the  abuses  connected  with  con- 
tributions and  requisitions,  this  limitation  wTas  not  thought 
to  be  very  substantial,  but  it  was  in  fact  by  no  means  un- 
important, since  it  rendered  illegal  contributions  levied  for 
the  purpose  of  enriching  the  occupant,  which  had  been  one 
of  the  gravest  abuses  of  the  Napoleonic  wars. 

Proposed  revision  of  the  Geneva  Convention. — During  the 
course  of  its  proceedings  with  only  military  delegates  as 
members,  the  Committee  also  considered  the  question  in 
what  ways  the  revision  of  the  Geneva  Convention  and  of 
such  of  the  Additional  Articles  as  applied  to  warfare  on 
land  was  desirable. 

Notable  members  of  the  Conference.— The  Conference 
was  a  singularly  able  body  of  men.  Among  the  delegates, 
however,  there  stand  out  especially  M.  Landsberge,  of 
The  Netherlands;  Baron  Lambermont,  of  Belgium;  Col. 
Hammer,  of  Switzerland,  and  General  Voigts-Rhetz,  the 
German  delegate.  The  experience  of  the  latter,  acquired 
in  the  Franco-German  AArar,  made  his  views  especially  valu- 
able. In  no  sense  can  the  Conference  be  said  to  have  con- 
demned the  conduct  of  that  war.  On  the  other  hand,  its 
results  were  valuable  largely  from  the  experience  gained 
therein. 

Adverse  report  of  the  British  delegate. — It  might  have 
been  expected  that  the  declaration  as  finally  drawn  up 
would  be  acceptable  to  all  the  parties  concerned.  It  was 
so  worded  that  disputed  points  were  left  to  the  unwritten 
law  of  nations,  and  was  so  guarded  by  reservations  that 
its  gains  could  not  be  said  to  be  counterbalanced  by  con- 
cessions. The  report,  however,  of  the  British  delegate, 
Major-General  Horsford,  was  adverse,  and  it  was  also  mis- 
leading. It  conveyed  an  impression  of  disagreement  as  to 
the  final  result  which  was  by  no  means  correct,  while  it  so 
seriously  misconstrued  the  positions  taken  and  the  results 
reached  by  the  larger  powers  on  controverted  points,  as 
to  lead  to  the  conclusion  that  its  author  was  so  biased 
against  the  whole  scheme  from  the  beginning  as  to  be  un- 
able to  exercise  towards  it  an  impartial  judgment. 


BRUSSELS  CONFERENCE  OF  1874.  109 

The  British  Government  refuses  to  ratify  the  work  of  the'' 
Conference. — In  view  of  this  circumstance  and  of  the  pre- 
vious unfavorable  attitude  of  the  British  Government,  it  is 
not  surprising  that  Lord  Derby  refused  to  proceed  further 
with  the  work  of  the  Conference.  In  a  despatch  of  Jan- 
uary 20,  1875,  to  Lord  Loftus,  he  said:  "It,  however,  soon 
appeared,  when  the  more  important  Articles  of  the  Project 
came  to  be  examined  and  discussed,  that  the  attitude  of 
reserve  which  Her  Majesty's  Government  had  held  towards 
it,  and  the  caution  of  the  British  delegate  were  fully  justi- 
fied. Instead  of  mere  rules  for  the  guidance  of  military 
commanders  based  on  usages,  upon  which  a  general  under- 
standing could  be  shown  to  be  desirable  in  the  interests  of 
humanity,  the  Articles  of  the  Project  were  seen  to  contain, 
or  to  imply,  numerous  innovations,  for  which  no  practical 
necessity  was  proved  to  exist,  and  the  result  of  which,  if 
adopted,  would  have  been  greatly  to  the  advantage  of  the 
Powers  having  large  armies  constantly  prepared  for  war, 
and  systems  of  universal  compulsory  military  service." 
Lord  Derby  also  declared  that  the  definition  of  military 
occupation  had  been  adopted  to  reconcile  opposing  views 
and  would  lead  to  recrimination,  and  that  the  same  thing 
was  true  of  the  provisions  as  to  belligerent  character  and 
as  to  requisitions  and  contributions.  He  further  criticised 
the  Declaration  because  the  articles  on  Reprisals  had  been 
dropped.  And  in  conclusion  he  said:  "It  will  have  been 
seen  from  the  foregoing  observations  that  Her  Majesty's 
Government  regard  the  result  of  the  Brussels  Conference 
to  have  been  to  demonstrate  that  there  is  no  possibility  of 
an  agreement  upon  the  really  important  Articles  of  the 
Russian  Project;  that  the  interests  of  the  invader  and  the 
invaded  are  irreconcilable ;  and  that,  even  if  certain  rules 
of  warfare  could  be  framed  in  terms  which  would  meet 
with  acquiescence,  they  would  prove  to  exercise  little  more 
than  that  fictitious  restraint  deprecated  by  the  Russian  Gov- 
ernment at  the  opening  of  the  Conference."  One  cannot 
help  feeling  in  reading  this  despatch  that  he  is  reading  the 
argument  of  a  man  who  had  made  up  his  mind  from  the 
very  first.29 

The  reply  of  Prince  Gortchacow  to  Lord  Derby. — Prince 
Gortchacow  made  a  lengthy  reply.     He  pointed  out  that 

29  Pari.  Papers,  1875,  Misc.  No.  2,  pp.  2-7. 


110  THE    CODIFICATION    OF   THE    LAW    OF    WAR. 

what  the  Conference  had  done  was  to  declare  that  a  popu- 
lation organized  in  a  way  falling  far  short  of  compulsory- 
military  service  and  observing  the  laws  of  war  should  be 
treated  as  belligerents,  and  that  in  no  respect  could  it  be 
said  that  the  rights  of  defense  would  be  weakened.  He 
also  stated  that  the  discussions  which  had  arisen  had  shown 
how  uncertain  were  the  laws  of  war,  and  how  necessary 
was  some  general  agreement  upon  them.30  This  closed  the 
official  correspondence.  That  the  objections  of  Lord  Derby 
were  unfounded  is  shown  by  the  action  of  the  Government 
headed  by  Lord  Salisbury  in  ratifying  The  Hague  Conven- 
tion, containing  most  of  the  provisions  which  Lord  Derby 
had  so  severely  condemned. 

The  Institute  of  International  Law  approves  the  work  of 
the  Conference. — At  the  Geneva  meeting  of  the  Institute 
of  International  Law,  in_1874,  a  committee  was  appointed 
to  study  the  results  of  the  Brussels  Conference.  Kolin-Jae- 
quemyns,  acting  as  secretary  to  the  committee,  drew  up 
a  long  list  of  questions  concerning  the  Declaration,  and 
the  answers  which  he  received  and  his  own  report  make 
an  interesting  commentary  on  the  project.31  William  Beach 
Lawrence  had  already  questioned  the  propriety  of  deny- 
ing to  belligerents  the  choice  of  any  means  which  might 
enable  them  to  shorten  wars.32  Travers  Twiss  doubted  the 
wisdom  of  codification,  lest  it  might  stereotype  the  law;33 
while  Mountague  Bernard,  although  he  admitted  the  value 
of  the  recorded  discussions  of  the  conference,  considered 
the  acceptance  of  the  Declaration  undesirable.  He  admit- 
ted, however,  that  some  of  its  provisions  might  profitably 
be  embodied  in  a  code  of  instructions  drawn  up  by  par- 
ticular countries  for  the  use  of  their  armies.34  AVith  these 
exceptions,  all  the  members  of  the  committee  whose  opin- 
ions Rolin-Jaequemyns  gathered,  were  agreed  in  hailing 
the  Declaration  as  an  advanced  embodiment  of  enlightened 
public  sentiment.35  Accordingly,  the  Institute  passed  reso- 
lutions approving  it  and  expressing  the  wish  that  govern- 
so  Pari.  Papers,  1875,  Misc.  No.  3,  pp.  5-0. 

si  Rolin-Jaequemyns,  Revue  de  Droit  Inter.  VII   (1875),  pp.  87-111, 
438-552. 

32/bidJ.,  pp.  526-529,  p.  450. 

™Ibid.,  p.  451. 

a*  Ibid.,  pp.  467,  523. 

35  Ibid.,  pp.  463-465,  466-469. 


BRUSSELS  CONFERENCE  OF  1874.  Ill 

ments  generally  might  incorporate  its  rules  in  the  instruc- 
tions for  their  armies.  The  Institute  also  approved  the 
proposition  of  General  Arnaudeau,  one  of  the  French  dele- 
gates, in  favor  of  an  agreement  between  the  powers  for 
the  purpose  of  establishing  uniformity  in  the  penal  codes 
used  in  war,  as  well  as  the  proposition  of  the  Italian  dele- 
gates, Baron  Blanc  and  Colonel  Count  Lanza,  in  favor  of 
a  similar  agreement  for  the  unification  of  the  rules  of  in- 
tercourse between  the  belligerents.  Finally  it  expressed 
its  approval  of  the  proposal  of  Colonel  Brun,  one  of  the 
Danish  delegates  that  "after  a  contest,  the  belligerents  are 
held  to  communicate  to  the  adverse  party  the  list  of  dead 
fallen  into  their  power.  To  render  this  easier  it  will  be 
desirable  that  each  soldier  be  furnished  with  a  mark  in- 
dicating his  number  (his  name),  the  number  of  his  regi- 
ment and  that  of  his  company."36 

The  approval  richly  deserved. — The  approval  given  by 
the  Institute  to  the  work  of  the  Conference  was  richly  de- 
served. It  had  been  feared  that  the  predominance  of  the 
military  element  among  the  members  would  result  in  re- 
trogression rather  than  advancement.37  Exactly  the  oppo- 
site actually  happened.  The  practical  knowledge  of  the 
conditions  of  warfare  which  the  military  men  possessed 
enabled  them  to  deal  at  first  hand  with  questions  which 
men  of  other  training  would  have  had  to  resort  to  treatises 
on  International  Law  to  decide.  Depending  solely  on  books, 
they  would  have  been  almost  certain  to  allow  undue  weight 
to  the  precedents  of  a  bygone  age  or  the  generalizations  of 
scientific  writers,  so  that  their  work  would  have  fallen 
short  of  the  spirit  of  the  age  or  have  embodied  principles 
which  did  not  truly  incorporate  the  experience  of  the  past. 

The  moral  tone  of  the  Conference  was  high. — As  it  was, 
the  delegates,  while  not  losing  sight  of  military  necessity, 
showed  that  they  had  imbibed  the  humane  spirit  of  the  age 
and  that  they  had  a  full  appreciation  of  the  power  for 
good  or  evil  which  they  held  in  their  hands.  Their  pro- 
posals were  clear  cut  and  practical,  and  the  questions  were 
argued  with  great  ability  and  with  consideration  for  the 
feelings  of  other  delegates. 

It  is  fortunate  that  the  Declaration  of  the  Conference  was 

36  Ibid.,  p.  287. 
87 /bid.,  p.  91. 


112  THE    CODIFICATION    OF    THE    LAW    OF    WAR. 

so  largely  the  work  of  military  men. — Finally,  it  is  fortunate 
that  the  Declaration  was  so  largely  the  work  of  military 
men.  This  circumstance  has  tended  to  add  to  its  authority 
as  a  practical  measure,  as  well  as  to  the  authority  of  The 
Hague  Regulations,  which  are  based  on  it.  The  necessities 
of  war  are  capable  of  such  a  liberal  construction  that  the 
Regulations  would  be  of  little  use  in  ameliorating  belliger- 
ent practices  in  the  hands  of  men  antagonistic  to  it ;  and 
such  a  feeling  of  antagonism  might  well  have  existed  among 
military  men  had  the  declaration  been  drawn  for  them  by 
men  of  other  training  whom  they  believed  to  be  unac- 
quainted with  the  conditions  for  which  they  were  legislat- 
ing. The  danger  of  hostility  to  The  Hague  Regulations  is 
therefore  now  avoided  by  the  fact  that  military  men  had 
so  large  a  share  in  their  creation.  That  military  men  on 
that  occasion  showTed  themselves  so  thoroughly  imbued  with 
the  humanitarian  spirit  of  the  age  is  evidence  that  they 
may  in  the  future  be  entrusted  with  the  leading  part  in  the 
development  of  the  laws  of  war  that  they  have  had  in  the 
past. 

The  Russo-Turkish  War  of  1877.— During  the  Russo- 
Turkish  War  of  1877  the  Russian  Government  endeavored, 
by  the  publication  and  distribution  of  a  sort  of  military 
catechism,  to  acquaint  its  soldiers  with  the  laws  of  war; 
and  it  also  issued  a  most  humane  regulation  for  the  treat- 
ment of  prisoners  of  war.38  The  Turkish  Government  took 
no  such  steps.  Only  on  the  representation  of  neutral  powers 
wras  a  translation  made  of  the  Geneva  Convention  into 
Turkish.  Late  in  1876  the  Turkish  Government  had  found 
that  the  Red  Cross  violated  the  susceptibilities  of  Moham- 
medans. It  accordingly  made  known  to  the  Swiss  Govern- 
ment its  intention  to  substitute  the  Red  Crescent  for  the 
Red  Cross.  After  some  negotiations  between  the  signatories 
of  the  Geneva  Convention  it  was  suggested  by  the  German 
Government  that  the  substitution  be  agreed  to  as  a  modus 
vivendi  for  the  war.  Both  parties  agreed  to  this,  Russia's 
consent  being  conditioned  on  the  promise  of  Turkey  to 
instruct  her  troops  to  respect  the  Red  Cross.39 

Nevertheless,  numerous  complaints  arose,  and  mutual  re- 
criminations added  to  the  difficulty  of  ascertaining  the  facts. 

38  Holland,  Studies  in  Inter.  Law,  pp.   86,   164. 
saPradier  Fodere,  Droit  Inter.  Public,  VII,  pp.  399-405. 


THE  MANUAL  OF  OXFORD.  113 

That  the  irregular  troops  of  the  Turks,  such  as  the  Bashi- 
Bazouks  and  Kurds,  continually  committed  outrages,  and 
that  prisoners  were  subjected  by  the  Turks  to  slaughter 
and  mutilation  can,  however,  scarcely  be  questioned.40 

The  Manual  of  Oxford. — At  the  meeting  of  1875  the  In- 
stitute of  International  Law,  as  we  have  seen,  passed  reso- 
lutions recommending  that  governments  instruct  their  ar- 
mies in  the  rules  of  International  Law.41  In  order  to  as- 
certain what  was  being  done  in  that  direction,  the  Secre- 
tary-General, Rolin-Jaequemyns,  in  his  annual  report  of 
1878,  suggested  a  study  of  the  different  codes  which  various 
countries  had  adopted  for  their  armies.  The  result  was  a 
report  by  Gustave  Moynier,  and  as  comparatively  little  was 
found  to  have  been  done  it  was  agreed  that  he  should  draft 
a  code,  or  manual,  to  be  proposed  to  the  various  govern- 
ments. Great  care  was  taken  that  the  completed  work 
should  fairly  represent  the  opinion  of  the  Institute.  To 
secure  this  copies  of  the  first  draft  were  sent  to  all  the 
members.  Criticisms  of  all  kinds  poured  in.  A  second 
draft  was  made  and  submitted  to  a  committee,  which  sat 
for  several  days  at  Dr.  Bluntschli's  home,  in  Heidelberg. 
Early  in  September,  1880,  the  final  draft  was  made,  and  it 
was  accepted  by  the  Institute  at  Oxford  soon  afterwards. 
Copies  of  the  manual  were  then  sent  to  the  various  govern- 
ments, with  a  letter  representing  it  to  be  the  duty  of  each 
government  to  issue  some  such  instructions  to  its  troops. 
^The  provisions  of^the  new  code  followed  very  closely  those. 
of  the  Declaration  of  Brussels.  The  subject  of  Reprisals, 
however,  is  briefly  included.  The  substance  of  the  manual 
is  in  most  cases  the  same  as  that  of  the  Declaration  of 
Brussels,  but  the  form  is  quite  different.  The  general  ar- 
rangement is  different,  and  the  provisions  are  so  worded, 
with  explanatory  passages  in  small  type  between,  as  to 
render  them  easy  of  comprehension  by  the  soldier.  The 
work  was  ably  done,  but  the  direct  results  were  not  so 
great  as  were  hoped  for. 

Correspondence  between  Dr.  Bluntschli  and  Count  von 
Moltke  following  the  publication  of  the  Manual  of  Oxford. 
— An  interesting  correspondence  followed  the  publication 

*o  Hid.,  p.  165. 

*i  This   account   of  the   compilation   of  the   Manual   is   taken   from 
Holland,  Ibid.,  p.  89,  et  seq. 

8 


jU"> 


114  THE    CODIFICATION    OF    THE    LAW    OF    WAR. 

of  the  Manual  between  Dr.  Bluntschli  and  Count  von 
Moltke,  to  whom  he  sent  a  copy.  In  the  course  of  his  ob-" 
servations  Count  von  Moltke  said: 

"In  the  first  place,  I  appreciate  fully  the  philanthropic 
efforts  made  to  lessen  the  evils  incident  to  war.  Perpetual 
peace  is  a  dream,  and  not  even  a  good  dream.  War  is  an 
element  of  the  world's  order  established  by  God.  The 
noblest  virtues  of  man  are  developed  there :  courage  and 
self-effacement,  the  fidelity  to  duty  and  the  spirit  of  sac- 
rifice ;  the  soldier  gives  his  life.  Without  war  the  world 
would  stagnate  and  lose  itself  in  materialism. 

"I  am  further  absolutely  in  accord  with  the  proposition 
announced  in  the  introduction ;  that  the  gradual  softening 
of  manners  ought  to  be  reflected  in  the  manner  of  making 
war.  But  I  go  further  and  I  believe  that  the  softening  of 
manners  alone  can  lead  to  that  end,  which  would  not  be 
attained  by  means  of  a  codification  of  the  law  of  war.  All 
law  supposes  an  authority  to  watch  over  and  execute  it, 
and  it  is  this  power  that  is  lacking  in  the  observation  of 
international  agreements.  WThat  third  powers  will  ever 
take  arms  for  the  sole  motive,  that,  two  powers  being  at 
war,  the  laws  of  war  have  been  violated  by  one  or  both 
of  them?  For  this  kind  of  infractions  there  is  no  judge 
here  below.  Success  can  come  only  of  the  religious  and 
moral  education  of  individuals,  of  the  sentiment  of  honor 
and  of  the  sense  of  justice  of  the  chiefs,  who  impose  on 
themselves  the  law  and  conform  thereto  as  far  as  the  ab- 
normal conditions  of  war  allow. 

"This  being  so,  it  is  also  necessary  to  recognize  that  the 
progress  of  humanity  in  making  war  has  really  followed 
the  general  softening  of  manners.  Only  compare  the  hor- 
rors of  the  Thirty  Years'  War  with  the  struggles  of  mod- 
ern times ! 

"A  great  step  has  been  made  in  our  day  by  the  estab- 
lishment of  compulsory  military  service,  which  compels 
the  educated  classes  to  enter  the  army.  The  gross  and 
violent  elements  without  doubt  always  make  a  part,  but 
they  are  not  the  only  elements  as  formerly. 

"Besides,  governments  possess  two  powerful  means  to 
prevent  the  worst  excesses ;  rigorous  discipline,  maintained 
in  time  of  peace  and  of  which  the  soldier  has  gotten  the 
habit,  and  the  vigilance  of  administration  which  provides 
for  the  subsistence  of  the  troops  in  the  field. 


VON  MOLTKE  ON  WAR.  115 

'JJlhe— greatest  benefit  in  war  is  that  it  be  terminated 
promptly.  It  ought  to  be  permitted  in  view  of  this  end, 
to  use  all  means,  save  those  which  are  positively  condemn- 
able.  I  by  no  means  agree  with  the  Declaration  of  St. 
Petersburg,  when  it  pretends  that  the  enfeebling  of  the 
military  forces  of  the  enemy  constitutes  the  only  legitimate 
mode  of  proceeding  in  war.  No,  it  is  necessary  to  attack 
all  the  resources  of  the  enemy's  government,  his  finances, 
his  railroads,  his  provisions,  his  prestige.     *     * 

"I  believe  that  in  war,  where  all  must  be  considered  indi- 
vidually, the  only  articles  which  will  prove  to  be  efficacious 
are  those  which  address  themselves  essentially  to  the  chiefs. 
Such  are  the  prescriptions  of  the  manual  concerning  the 
wounded,  the  sick,  the  physicians  and  the  sanitary  mate- 
rial. The  general  recognition  of  these  principles,  as  of 
those  which  concern  prisoners,  will  constitute  in  itself  an 
essential  progress  towards  the  end  which  the  Institute  of 
International  Law  pursues  with  so  honorable  a  persever- 
ance."42 

Wholesome  effect  of  Count  von  Moltke's  letter.— There 
is  much  in  this  letter  that  will  not  be  generally  accepted, 
but  Count  von  Moltke  stated  so  clearly  and  forcibly  the 
most  important  forces  which  make  for  the  betterment  of 
the  conditions  of  warfare  that  his  letter  has  been  exten- 
sively quoted.  Its  effect  was  not  so  much  to  make  ques- 
tionable the  advantage  of  written  agreements  as  to  em- 
phasize the  far  greater  importance  of  other  things.  The 
exaggerated  importance  sometimes  ascribed  to  international 
agreements  by  international  jurists  today  is  the  excuse  for 
what  he  said. 

The  adoption  of  manuals  by  various  governments. — In 
his  report  to  the  Institute  of  International  Law,  as  has 
been  observed,  Moynier  found  that  little  had  been  done 
by  the  various  governments  for  the  instruction  of  their 
troops.  He  found,  however,  that  the  Dutch  and  French 
Governments  had  adopted  unofficial  manuals  for  use  in  the 
schools  for  the  instruction  of  officers;  that  the  German 
Government,  even  as  early  as  1870,  had  issued  confidential 
instructions  as  to  conduct  in  warfare  to  its  officers;  that 
a  draft  of  such  rules  had  been  drawn  up  for  the  Swiss  Gov- 
ernment, and  that  other  governments  had  had  the  subject 

42  Revue  de  Droit  Inter.,  XIII,  pp.  80-82. 


116  THE    CODIFICATION    OF    THE    LAW    OF    WAR. 

under  discussion.  The  best  known  of  the  manuals  is  the 
French,  the  first  edition  of  which  appeared  in  1877,  and 
which  is  a  very  able  work.  Other  manuals  that  may  be 
noticed  are  that  of  the  Servian  Government,  issued  in  1878, 
that  of  the  Spanish  Government,  issued  in  1893,  which  was 
founded  mainly  on  the  work  of  a  congress  of  officers  rep- 
resenting the  armies  of  Spain,  Portugal  and  the  various 
Latin  states  of  South  and  Central  America,  held  in  Madrid, 
in  1892,43  and  finally  that  issued  by  the  British  war  office, 
in  1903,  consisting  of  The  Hague  Regulations  of  1899,  with 
supplementary  matter  and  notes  by  Professor  Holland. 

Notable  army  regulations.— Notable  army  regulations  are 
those  of  Spain  approved  by  a  law  of  January  5,  1882;  of 
Italy,  of  September  16,  1896;  of  Switzerland,  of  March  31, 
1904;  of  Russia,  of  June  14-27,  1904;  and  of  Portugal  and 
Columbia.44 

The  publication  of  the  German  staff.— The  German  staff 
published  a  work  in  1902  entitled  Kriegsbauch  im  Land 
Kriege — the  laws  of  war  on  land.  It  is  one  of  a  series  of 
monographs,  which  the  staff  considers  of  the  first  import- 
ance, intended  to  make  the  German  officers  profit  by  the 
recent  wars.45  Its  historical  character  is  possibly  responsi- 
ble for  its  partisan  references  to  the  Franco-German  War 
which  detract  from  its  scientific  value,  but  it  is  a  work  of 
great  ability,  is  clear  and  well  thought  out  and  of  great 
practical  value.  It  is  largely  based  on  the  work  of  Lueder, 
and  through  him  on  the  Brussels  Project  of  Declaration  and 
so  unfortunately  lays  less  stress  on  The  Hague  Regulations 
than  the  international  character  of  the  latter  would  call 
for. 

43  Holland,  Studies  in  International  War,  pp.  85-87. 

44  Merighnac,  Les  Lois  de  la  C4uerre  Continentale  Suivant  le  Grand 
Etat-Major  Allemand,  14  R.  G.  D.  I.  P.,  p.  199. 

45  Ibid,  p.  203. 


"WARS  IN  THE  EAST  AND  WEST.  117 


CHAPTER  XI. 

WARS    IN    THE    EAST   AND   WEST. 

Progress  shown  by  Japan  in  the  Chino-Japanese  War. — 

The  Chinese-Japanese  War  was  noteworthy  for  the  progress 
.Japan  was  shown  to  have  made  in  the  observance  of  occi- 
dental standards  in  the  conduct  of  warfare,  and  for  the 
high  tone  which  she  took  in  observing  those  standards 
against  an  enemy  which  failed  to  recognize  their  binding 
force.  One  of  the  first  questions  that  confronted  her  was 
the  treatment  of  Chinese  resident  in  Japan.  By  a  decree 
of  August  4,  1894,1  she  allowed  those  who  wished  to  remain 
to  do  so  during  good  behavior  on  condition  of  registering 
within  twenty  .days.  Mr.  Ariga,  in  his  able  work  entitled 
TJaGuerre  Sino-Japonaise,  says  that  about  half  the  Chinese 
resident  in  Yokohama  and  Kobe  took  advantage  of  this 
act.  Registered  Chinese  were  to  continue  in  their  employ- 
ments, including  commercial  intercourse  with  China.  As 
an  incident  to  this  continued  right  of  residence  and  of  com- 
merce, the  Japanese  courts  remained  open  to  the  Chinese 
who  remained.2 

Care  in  restricting  hostilities  to  the  regular  combatants. — 
Great  care  was  taken  that  those  not  entitled  to  combatant 
privileges  should  not  engage  in  hostilities.  It  was  feared 
that  the  volunteers  who  offered  themselves  at  the  beginning 
of  the  war  might  not  live  up  to  the  high  standard  which 
the  Empire  had  set  for  itself,  and  their  services  therefore 
were  refused.3 

Afterwards,  on  the  invasion  of  Chinese  territory,  it  was 
found  that  the  coolies,  contract  laborers  attached  to  the 
army,  were  committing  depreciations,  and  as  a  consequence 
their  arms  were  taken  from  them.  As  a  result,  ten  days 
later,  a  large  number  of  them  were  killed  while  transport- 
ing provisions  for  the  army.  Notwithstanding  this,  the 
order  forbidding  them  to  bear  arms  was  not  withdrawn.4 

i  Ariga,  La  Guerre  Sino-Japonaise,  p.  23. 

2  Ibid.,  pp.  28-29. 

3  Ibid.,  pp.  34-38. 

4  Ibid.,  pp.  45-50. 


118  WARS    IN    THE   EAST   AND   WEST. 

II  XXVI  provides  that  a  commander,  before  commencing  a 
bombardment  will  do  all  in  his  power  to  warn  the  inhab- 
itants unless  it  accompanies  an  assault.  The  bombard- 
ment of  Kinehau  came  within  the  exception  being  simul- 
taneous with  the  assault,  and  accordingly  no  notice  was 
given  the  inhabitants. 

The  taking  of  Port  Arthur.— The  taking  of  Port  Arthur 
was  the  one  regrettable  incident  of  the  war  on  the  part  of 
the  Japanese.  The  occurrences  there  are  well  summed  up 
by  Prof.  Holland,  who  says : 

"It  was  the  torture  and  mutilation  of  those  Japanese 
who  happened  to  be  made  prisoners  during  the  operations 
against  Port  Arthur  which  stung  their  fellow  countrymen 
into  madness,  and  explains,  though  nothing  can  excuse, 
the  massacres  which  were  carried  on  by  them  for  four 
days  after  the  place  was  taken." 

The  account  of  the  taking  by  Marshal  Oyama.— In  his 
official  response  to  the  inquiry  of  the  General  Staff  as  to 
what  happened  at  Port  Arthur,  Marshal  Oyama  replied: 
"  (a)  The  facts  disclosed  below  will  make  it  evident  that 
the  confusion  of  the  soldiers  and  of  the  civil  population 
was  necessary: 

"1.  The  city  of  Port  Arthur,  which  was  a  military 
port,  was  composed  of  a  great  number  of  soldiers  and 
workers. 

"2.  The  retreating  soldiers  fired  on  the  Japanese  from 
the  interior  of  the  houses. 

'3.     Arms,  bullets  and  powder  were  left  in  each  house. 
'4.     The  entry  of  the  Japanese  army  into  the  city  took 
place  towards  sunset. 

"(b)  Those,  among  the  soldiers,  who  were  killed  after 
the  21st,  had  all  opposed  an  obstinate  resistance  or  attempt- 
ed to  escape.  Death  was  therefore  a  necessary  punishment. 
"(c)  The  pillage  of  the  property  of  the  civil  population 
is  an  accusation  without  foundation.  It  may  be  that  the 
Japanese  army,  which  passed  the  night  in  the  city,  exacted 
certain  objects  of  which  it  had  need,  such  as  tables,  benches, 
candle-sticks,  cups,  firewood,  coal,  etc. ;  but,  as  to  pillage,  I 
am  able  to  affirm  that  it  never  existed.  Some  rare  infrac- 
tions under  this  head  were  condemned,  conformably  to  es- 
tablish laws. '  '5 

s  Ibid.,  pp.   88-89. 


THE  CHINO-JAPANESE  WAR.  119 

Criticism  of  this  account. — As  to  (a),  Mr.  Ariga  considers 
that  Marshal  Oyama  has  made  good  his  point  provided  the 
assault  of  the  city  and  the  fighting  in  the  streets  was  neces- 
sary at  all;6  and  as  to  (b),  that  the  Marshal  is  not  suffi- 
ciently precise  as  to  whether  the  prisoners  were  shot  in  en- 
deavoring to  prevent  their  escape,  or  after  their  recapture 
for  having  attempted  to  escape.7  In  the  former  case  the  kill- 
ing would  have  been  justified,  in  the  latter,  not.  If  the  ob- 
stinate resistance  of  the  prisoners  amounted  to  insubordina- 
tion, then  it  may  have  justified  their  being  killed ;  but  if  it 
occurred,  not  after  they  were  made  prisoners,  but  before,  it 
k  must  certainly  be  condemned,  their  punishment  therefor 
being  something  that  would  have  occasioned  the  severe  re- 
buke of  even  Bynkershoek.8 

Treatment  of  the  dead. — No  attempt  was  made  by  the 
Japanese  to  identify  the  Chinese  dead,  as  it  was  practically 
impossible  to  do  so  on  account  of  the  Chinese  military  au- 
thorities having  taken  no  notice  of  the  civil  status  of  the 
soldiers.  If  it  had  been  possible  to  identify  them,  one  of  the 
great  reasons  for  identification,  the  right  of  the  family  of 
the  deceased  to  a  pension,  did  not  exist  among  the  Chinese.9 
In  disposing  of  the  dead,  regard  was  had  to  the  prejudice  of 
the  Chinese  against  cremation,  and  at  first  they  were  usually 
buried,  although  the  icy  condition  of  the  ground  made  the 
digging  of  graves  very  difficult.  Later,  however,  it  was 
found  that  the  Chinese  in  the  neighborhood  regarded  the 
soldiers  as  strangers  and  so  cared  little  what  was  done  with 
the  dead  bodies.  Accordingly  less  care  was  taken  in  this  re- 
gard.10 

Treatment  of  prisoners  of  war. — Little  complaint  can  be 
made  as  to  the  treatment  of  prisoners  of  war,  except  in  the 
case  of  Port  Arthur.  The  Geneva  Convention  jvas  not 
always  observed,  but  this  questioirpTusmn'eU'peculiar  diffi- 
culties. While  Japan  had  adhered  to  the  convention,  China 
had  not.  Moreover,  the  Chinese  had  no  organized  medical 
staff,  and  their  knowledge  of  medicine  was  so  imperfect  as 
to  make  reciprocity  of  treatment  impossible.11    Consequent- 

6  Ibid.,  pp.  89-92. 

7  Ibid.,  pp.  92-93. 

s  Bynershoek,   Law  of  War,   p.   22. 
9  Ariga,  pp.  98-99. 
io  Ibid.,  pp.   101-104. 
ii  Ibid.,  p.  111. 


^ 


120  WARS    IN   THE    EAST   AND    WEST. 

ly,  the  convention  was  not  so  perfectly  observed,  even  in 
respect  of  aid  to  the  sick  and  wounded  in  the  field  as  might 
have  been  desired,12  although  the  general  standard  main- 
tained by  Japan  was  by  no  means  low. 

In  this  relation  the  illustrious  work  of  an  •  Englishman, 
Dr.  Daly,  at  Incau  must  be  mentioned.  In  the  hospital  es- 
tablished there  by  himself  and  others  were  gathered  more 
than  a  thousand  wounded  Chinese,  while  in  the  Japanese 
hospital  at  the  same  place,  out  of  thirty  in  all,  only  one  was 
a  Chinese,  though  the  number  later  increased  to  five.13  Ex- 
cept in  special  cases,  the  Red  Cross  Society  was  not  allowed 
to  carry  on  its  work  within  the  scene  of  active  operations. 
This,  Mr.  Ariga  considers  to  have  been  unfortunate,  as  the 
regular  staff  was  not  able  to  attend  to  all  that  was  to  be 
done.14 

Treatment  of  private  property. — In  the  treatment  of  pri- 
vate property,  the  action  of  the  Japanese  seems  to  have  been 
all  that  could  be  desired.  Goods  requisitioned  were  paid 
for,  no  imposts  or  fines  were  exacted,  nor,  to  Mr.  Ariga 's 
knowledge,  were  any  contributions.15  The  rate  of  exchange 
and  the  price  to  be  paid  for  provisions  were  settled  by  the 
military  authorities.16  Among  the  services  requisitioned 
were  those  of  guides  and  of  drivers,  with  their  wagons  and 
teams.17  Little  aid  in  the  execution  of  requisitions  was 
given  by  the  local  functionaries,  as  most  of  them  had  fled. 
In  Kinchau,  however,  a  body  of  merchants,  which  had  been 
made  use  of  by  the  Chinese  authorities,  was  made  use  of  by 
the  Japanese  also.18 

The  administration  of  the  occupied  territory.— The  ad- 
ministration of  the  occupied  territory  was  at  first  entrusted 
to  civil  officials,  most  of  them  being  the  old  consuls  or  sec- 
retaries of  legation,  or  secretaries  of  provinces  having  a 
port  open  to  strangers;  but  the  friction  that  this  brought 
about  between  them  and  the  army  caused  them  to  be  super- 
seded later  by  purely  military  men.19     The  local  function- 

12  ibid.,  p.  117. 

13  Ibid.,  p.  119. 

14  Ibid.,  pp.  138-147. 
is  Ibid.,  pp.  163-164. 
ivibid.,  pp.  167-172. 
17  Ibid.,  pp.  165-166. 
is  Ibid.,  p.  165. 

i3  Ibid.,  pp.  178-179. 


THE  CHINO- JAPANESE  WAR.  121 

aries  having  fled,  it  was  necessary  to  get  others  to  take  their 
places.  The  city  of  Kinchau,  for  example,  was  divided  into 
four  districts,  over  each  of  which  some  popular  citizen  was 
placed  while  two  citizens  of  similar  standing  were  placed 
over  the  entire  city.  Finally  it  was  decided  that  mayors 
should  be  placed  at  the  head  of  each  village  and  elections 
were  held  for  that  purpose.20  A  notable  feature  of  the  occu- 
pation was  the  effort  made  to  improve  the  sanitary  condi- 
tion of  the  territory  occupied.21  Of  penal  measures  the  most 
noteworthy  was  that  of  holding  the  villages  to  collective 
responsibility  for  offences  committed  against  the  law  of  na- 
tions, after  the  manner  of  the  Germans  in  France  in  1870.22 

The  conduct  of  the  Chinese. — At  the  beginning  of  the  war, 
the  Chinese  Government,  through  the  American  Ministers  at 
Pekin  and  Tokio,  proposed  to  the  Japanese  Government  the 
exemption  of  private  property  at  sea  from  capture.  This 
was  accepted.  Later  the  Chinese  Government  refused  to  ex- 
empt Japanese  vessels  entering  Chinese  ports  from  capture, 
but  as  this  was  only  the  enforcement  of  the  rule  of  non- 
intercourse,  it  can  not  be  held  to  be  in  contradiction  to 
China's  previous  action  with  regard  to  the  exemption  of 
private  property  at  sea.23  In  other  respects  the  action  of  the 
Chinese  dees  not  seem  to  have  materially  improved  over 
that  of  previous  times.  Prices  were  offered  for  heads  and 
hands,  heads  actually  were  cut  off  and  exhibited  in  triumph, 
and  bodies  were  sadly  mutilated.24  -v 

The  Graeco-Turkish  War  of  1897.— The  Graeco-Turkish   ^ 
War  of  1897  is  especially  interesting  for  the  care  which  the    C.  -<a 
Turkish  authorities  took  to  show  the  world  their  intention  *J 
to  live  up  to  modern  standards  in  the  care  of  prisoners  of 
war25  as  well  as  to  the  obligations  of  the  Geneva  Conven- 
tion.    Elaborate  orders  were  issued  in  accord  with  the  lat- 
ter, special  envoys  of  the  Sultan  visited  the  hospitals  and 
ambulances  and  it  is  said  that  the  members  of  his  harem 

20  Ibid.,   pp.    195-196. 

21  Ibid.,  pp.  97-201. 

22  Ibid.,  pp.  207-209. 

23  But  see  Takahashi,  International  Law  during  the  Chino-Japanese 
War,  pp.  9-11. 

24  Holland,   Studies  in  International  Law,  pp.   116,   128;   Ariga,  La 
Guerre  Sino-Japonaise,  p.  87. 

25  Nicolas  Politis,  Chronique  des  Faits  Internationaux,  4  R.  G.  D. 
I.  P.,  "697. 


122  WARS    IN    THE   EAST   AND   WEST. 

themselves  prepared  linen  and  other  material  for  the  care  of 
the  sick  and  wounded.20  In  the  large  centers,  at  least,  quit- 
tances were  given  for  requisitions.27  On  the  other  hand  vio- 
lence to  noncombatants  was  not  infrequent  and  in  Thessaly 
the  Greeks  were  ordered  to  return  to  their  homes  under 
penalty  of  the  confiscation  of  their  goods.28  In  the  admin- 
istration of  the  occupied  territory  perhaps  the  most  nota- 
ble measures  were  the  imposition  of  the  Turkish  imposts 
on  sheep,  salt  and  tobacco29  and  the  direction  of  the  Greek 
Government  to  its  functionaries  to  resign  their  positions.30 

Expulsion  of  Greeks  from  Turkey. — Immediately  after 
the  declaration  of  war  a  decree  of  the  Sultan  pronounced 
the  expulsion  en  masse  within  fifteen  days  of  the  Declara- 
tion of  all  Greeks  residing  in  Ottoman  territory.  There 
were  then  nearly  200,000  of  these,  most  of  them  merchants.31 
The  fifteen  days  of  grace  were  confined  to  merchants  and 
other  Greek  subjects  having  a  permanent  occupation.  All 
other  Greeks  were  ordered  to  quit  in  three  days,  and  at 
Smyrna,  for  instance,  Greek  subjects  were  forcibly  em- 
barked from  the  first  day  of  the  war.  Scarcely  eight  days 
after  the  declaration  of  war  15,000  of  them  had  left  Turkey. 

By  a  special  decree  of  May  2,  the  Imperial  Government 
declared  that  until  the  reestablishment  of  relations  with 
Greece,  the  process  of  Greek  subjects  pending  before  Otto- 
man tribunals  would  be  suspended,  that  those  owing  debts 
either  to  the  fisc  or  to  individuals  should,  before  quitting 
the  Empire,  furnish  sufficient  guarantees  of  solvency,  and 
that  those  who  possessed  immovables  would  not  be  able  to 
sell  them.  Special  commissions  were  instituted  in  most  of 
the  provinces  composed  of  four  Turkish  functionaries.  They 
were  to  agree  to  the  request  of  the  Greeks  to  remain  on 
condition  of  their  changing  their  nationality. 

Against  this  decree  the  ambassadors  of  the  great  powers 
protested.  They  said  it  would  give  rise  to  regrettable  dis- 
orders and  that  especially  it  should  not  be  applied  to  Greeks 
employed  in  foreign  houses,  in  hospitals,  embassies  and 
consulates.     They  demanded  a  prolongation  of  the  fifteen 

26  Ibid.,  p.  699. 

27  Ibid.,  706. 

as  ibid.,  pp.  701-702. 
29  Ibid.,  710. 
so  ibid.,  709. 
si  Ibid.,  525. 


THE  SPANISH-AMERICAN    WAR.  123 

days  of  grace,  and  while  the  Porte  acceded  to  this  by  grant- 
ing an  extension  of  a  week  he  expressly  refused  to  except 
the  employees  of  consulates,  hospitals  and  foreign  houses 
from  the  decree.  This  brought  out  another  protest  from 
the  ambassadors,  and  henceforth  such  employees  do  not 
seem  to  have  been  molested.  The  last  day  of  grace  was 
finally  fixed  at  May  25,  but  before  that  time  hostilities  had 
ceased.32 

Spanish-American  War  principally  maritime. — The  Span- 
ish-American War  was  largely  maritime  in  character.  As 
already  noticed,  the  Additional  Articles  to  the  Geneva  Con- 
vention of  1868  had  not  received  the  unanimous  approval 
of  the  signatories  of  the  Geneva  Convention  and  so  had  not 
become  binding.  On  the  suggestion  of  the  Swiss  Govern- 
ment, however,  the  practice  of  the  Franco-German  War  was 
followed  and  they  were  adopted  so  far  as  they  related  to 
naval  warfare,  as  a  modus  Vivendi  for  the  war.33  Nor  was 
the  Declaration  of  Paris  binding  on  either  of  the  parties. 
Howrever,  immediately  on  the  outbreak  of  hostilities  the 
United  States  declared  that  its  "policy"  would  be  not  to 
resort  to  privateering,  and  although  Spain  reserved  the 
right  to  make  use  of  letters  of  marque  she  did  not  avail 
herself  of  the  reservation.  To  the  second,  third  and  fourth 
articles  of  the  Declaration  of  Paris,  the  United  States  ad- 
hered, as  "recognized  rules  of  international  law."34  Span- 
ish vessels  in  ports  of  the  United  States  were  allowed  thirty 
days  from  the  outbreak  of  hostilities  to  load  their  cargoes 
and  depart,  and  were  assured  of  exemption  from  seizure 
during  their  home  voyage,  on  condition,  however,  of  not 
carrying  coal,  contraband  or  analogues  of  contraband,  such 
as'  despatches  or  Spanish  officers.  Spanish  vessels  sailing 
from  a  foreign  port  to  a  port  in  the  United  States,  before 
the  outbreak  of  hostilities,  were  likewise  allowed  to  enter, 
discharge  their  cargo  and  leave  without  fear  of  capture 
during  the  remainder  of  the  voyage.  The.  Spanish  decree 
made  no  such  provision  with  regard  to  vessels  sailing  for 
a  Spanish  port,  and  instead  of  thirty  days  for  the  departure 
of  vessels  already  in  port  allowed  five.35 

32  Ibid.,  pp.  525-532. 

33  J.  B.  Moore,  Maritime  Law  in  the  Spanish  War,  in  Inter.  Law, 
Situations — Naval  War  College — 1901,  pp.   144-145. 

^  Ibid.,  p.  152. 
35  Ibid.,  p.  153. 


124  WARS    IN    THE   EAST   AND    WEST. 

Neutral  ships  allowed  to  clear  for  Spanish  ports. — "On 
April  27,  1898,  the  Treasury  Department  issued  to  collectors 
of  customs  certain  instructions,  which  were  prepared  in 
consultation  with  the  Department  of  State.  These  instruc- 
tions forbade  the  clearance  of  an  American  vessel  for  a 
Spanish  port,  but  the  only  restriction  they  placed  upon  the 
clearance  of  any  other  vessel  for  such  a  port  was  that  the 
vessel  should  not  carry  cargo  of  contraband  of  war  or  of 
coal.  Thus  the  clearance  of  a  neutral  ship  with  an  Amer- 
ican-owned cargo  for  a  Spanish  port  was  permitted,  and 
to  this  extent  trading  between  enemies  was  allowed."30 

The  decision  of  the  Supreme  Court  in  the  case  of  the 
Paquete  Habana. — The  decisions  of  the  Supreme  Court  be- 
long rather  to  the  second  part  of  this  work  than  to  the 
first,  but  there  was  one  decision  of  such  importance  as  to 
merit  special  attention.  That  was  "in  the  case  of  the  Span- 
ish fishing  smacks,  the  Paquete  Habana  and  the  Lola.  The 
particular  point  decided  was  that  'coast-fishing  vessels,  with 
their  implements  and  supplies,  cargoes  and  crews,  unarmed 
and  honestly  pursuing  their  peaceful  calling  of  catching 
and  bringing  in  fresh  fish,  are  exempt  from  capture  as  prize 
of  war.'  In  reaching  this  conclusion,  however,  the  court, 
through  Mr.  Justice  Gray,  who  delivered  the  opinion,  an- 
nounced and  applied  a  principle  which,  though  often  rec- 
ognized by  publicists,  has  perhaps  never  before  been  so 
clearly  and  precisely  enunciated  by  a  judicial  tribunal — 
that  is,  the  principle  of  the  progressive  development  of  in- 
ternational law.  Referring  to  a  decision  of  Lord  Stowell, 
in  which  it  was  said  that  the  exemption  of  vessels,  such  as 
those  in  question,  was  'a  rule  of  comity  only,  and  not  of 
legal  decision,'  Mr.  Justice  Gray  said: 

"  'The  word  "comity"  was  apparently  used  by  Lord 
Stowell  as  synonymous  with  courtesy  or  good  will.  But 
the  period  of  a  hundred  years  which  has  since  elapsed  is 
amply  sufficient  to  have  enabled  what  originally  may  have 
rested  in  custom  or  comity,  courtesy  or  concession,  to  grow, 
by  the  general  assent  of  civilized  nations,  into  a  settled 
rule  of  international  law.  As  well  said  by  Sir  James  Mack- 
intosh: :'In  the  present  century  a  slow  and  silent  but  very 
substantial  mitigation  has  taken  place  in  the  practice  of 
war;  and  in  proportion  as  that  mitigated  practice  has  re- 

saibid.,  pp.  176-177. 


THE  SPANISH-AMERICAN   WAR.  125 

ceived  the  sanction  of  time,  it  is  raised  from  the  rank  of 
mere  usage  and  becomes  part  of  the  law  of  nations.' 
Discourse  on  the  Law  of  Nations,  38;  Miscellaneous  Works, 
360." 

The  progressive  character  of  International  Law. — "It 
may  be  hoped  that  this  enlightened  declaration  will  lead 
our  courts  to  abandon  the  repetition  of  the  unfortunate 
dicta  in  Brown  v.  United  States,  based  upon  the  theory  that 
it  was  the  peculiar  prerogative  of  a  remote  age  to  fix  by- 
its  customs,  however  rude  and  barbarous  they  may  have 
been,  an  immutable  law,  in  comparison  with  which  the  cus- 
toms of  modern  times  are  merely  'comity'  or  'courtesy,' 
which  may  be  discarded  at  will."37 

The  question  of  the  Cuban  debt. — In  the  Peace  Negotia- 
tions the  question  was  earnestly  argued  of  the  obligation 
of  the  United  States  to  assume  the  so-called  Cuban  debt. 
The  Spanish  Commissioners  claimed  that  all  outstanding 
obligations  that  had  been  legally  contracted  for  the  serv- 
ice of  Cuba  and  Porto  Rico,  and  which  were  chargeable  to 
their  individual  treasuries,  always  distinct  and  separate 
from  the  Treasury  of  the  Peninsula,  were  Cuban  or  Porto 
Rican  obligations,  that  is,  local  obligations,  solely  and  ex- 
clusively affecting  the  territory  of  the  islands  and  their 
inhabitants.38 

The  American  Commissioners,  in  reply,  pointed  out  that 
while  it  was  true  that  the  "Cuban  Treasury"  was  not  a 
branch  of  the  Spanish  Treasury,  the  finances  of  the  islands 
were  exclusively  controlled  by  the  Spanish  Government; 
that  the  debt  creating  power,  such  as  commonly  belongs 
to  communes  or  municipal  corporations,  never  was  delegated 
to  Cuba,  and  that  such  a  thing  as  a  Cuban  obligation,  cre- 
ated by  the  Island  in  the  exercise  of  powers  either  inherent 
or  delegated,  was  unknown  to  the  markets  of  the  world. 
They  then  sketched  the  history  of  the  debt,  showing  that 
most  of  it  had  been  incurred  in  suppressing  the  insurrec- 
tions in  the  islands,  and  that,  while  the  Spanish  Govern- 
ment had  undertaken  to  pay  the  bonds  issued  as  late  as 
1890,  out  of  the  revenues  of  Cuba,  their  national  character 
was  demonstrated  by  the  fact  that  on  their  face  their  pay- 
ment was   guaranteed  by  the   Spanish  nation.     From  no 

37  Ibid.,  pp.   165-166. 

ss  Sen.  Doc.  No.  62,  Part  II,  55th  Cong.  3d  Sess.,  p.  43. 


126  WARS    IN   THE   EAST   AND   WEST. 

point  of  view,  said  the  American  Commissioners,  could 
these  debts  be  considered  as  local  debts  of  Cuba,  or  as  debts 
incurred  for  the  benefit  of  Cuba.  In  no  sense  were  they 
obligations  properly  chargeable  to  that  island.  They  were 
debts  created  by  the  Government  of  Spain  for  its  own  pur- 
poses and  through  its  own  agents,  and  in  whose  creation 
Cuba  had  no  voice.39  To  this  the  Spanish  Commissioners 
replied  that,  since  the  bonds  in  question  had  been  expressly 
secured  by  certain  and  determinate  revenues  and  receipts, 
Spain  had  a  right  to  consider  that  she  was  only  under  a 
subsidiary  obligation  to  pay  them  in  the  event  of  the  rev- 
enues and  receipts  primarily  hypothecated  for  the  payment 
thereof  proving  insufficient.40  The  American  Commission- 
ers closed  the  discussion  by  quoting  the  degree  of  autonomy 
signed  by  the  Queen  Regent  on  the  25th  of  November,  1897, 
in  which  it  was  declared  that  the  future  payment  and 
guarantee  of  the  debts  should  be  the  subject  of  a  law  on 
the  termination  of  the  war,  as  evidence  that  the  so-called 
Cuban  debt  was  really  a  national  debt,  and  that  the  pledge 
of  the  revenues  of  Cuba  was  considered  by  the  Spanish  Gov- 
ernment itself  as  being  wholly  within  its  control,  so  that  it 
could  be  modified  or  withdrawn  at  will  without  affecting 
the  obligation  of  the  debt.41 

Were  they  properly  mortgage  debts? — Here  the  Commis- 
sioners were  clearly  at  issue.  Did  the  promise  of  the 
Spanish  Government  to  pay  the  bonds  out  of  the  revenues 
of  Cuba  give  the  purchasers  of  those  bonds  a  property  right 
in  those  revenues,  analogous  to  the  right  of  the  ordinary 
mortgagee,  which  with  other  private  properties  was  bound 
to  be  respected  by  the  cession  or  relinquishment  of  the  is- 
land? Or  did  the  promise  at  best  create  merely  a  moral 
obligation  on  the  part  of  Spain  to  turn  over  those  revenues 
to  the  holders  of  the  bonds  as  long  as  she  retained  her 
sovereignity  over  the  island?  To  state  the  question  would 
appear  to  answer  it.  The  holders  of  the  bonds  had  appa- 
rently no  such  means  of  enforcing  the  alleged  hypotheca- 
tion in  the  ordinary  courts  as  the  ordinary  mortgagee  pos- 
sesses, nor  was  there  apparently  any  means  taken  to  make 
it  effective  by  placing  someone  in  the  customs  house  in  the 

39  Ibid.,  pp.  48-50. 
*<>  Ibid.,  p.  87. 
4i  Ibid.,  p.  101. 


THE   SPANISH-AMERICAN   "WAR.  12  T 

interests  of  the  bondholders.  Means  of  this  kind  would 
at  least  have  indicated  that  the  promise  of  payment  from 
the  revenues  was  regarded  as  an  essential  part  of  the  obli- 
gation of  the  bonds ;  and  although  the  grant  of  a  property 
right  in  a  governmental  function  is  to  be  looked  on  with 
disfavor,  it  might  thus  have  been  held  that  the  attempt  to 
create  a  property  right  was  so  clear  that  it  should  be  re- 
spected by  subsequent  sovereigns.  But  here  there  was  no 
such  clear  intention.  At  most  the  promise  might  be  inter- 
preted as  a  promise  to  pay  from  the  Cuban  revenues  as 
long  as  Spain  had  them  to  dispose  of. 

If  not,  were  they  properly  local  debts? — The  controversy 
is  thus  narrowed  down  to  the  question  whether  the  debts 
were  properly  local  debts.  In  that  case  entirely  apart  from 
the  question  whether  they  were  secured  by  the  Cuban  rev- 
enues they  should  have  passed  with  the  territory.  The 
Spanish  Commissioners  no  doubt  felt  that  what  Spain  had 
done  for  the  colonies  she  had  done  for  their  benefit.  It 
was  natural  that  they  should  so  feel,  but  to  an  outsider  it 
would  appear  that  whatever  good  intentions  Spain  may 
have  had,  her  power  was  misused,  and  that  she  could  not 
expect  to  shift  the  burden  of  her  own  mistakes  to  those 
who  had  suffered  so  grievously  from  them  already. 

Recognition  of  the  continued  obligation  of  certain  debts 
due  American  citizens  by  the  treaty  of  February  17,  1834. 
— A  commendable  feature  of  the  war  was  the  promptness 
with  which  Spain  recognized  the  continuing  obligation  of 
the  treaty  of  February  17,  1834,  by  which  she  had  settled 
the  claims  of  American  citizens  growing  out  of  the  wars 
with  her  colonies.  Her  acknowledgment  of  the  continuance 
of  this  obligation  was  emphasized  by  the  payment  of  two 
overdue  instalments  of  interest,  one  of  which  had  accrued 
during  the  war  as  well  as  by  the  explicit  declaration  that 
such  payment  was  to  be  considered  as  a  proof  of  "the  punc- 
tiliousness" with  which  the  Government  of  Her  Catholic 
Majesty  attended  to  its  "international  obligations."42 

42  Moore,   Effect   of   War  on   Public   Debts   and  on   Treaties,  in  the 
Columbia  Law  Review,  Vol.  I,  pp.  209,  et  seq. 


128  THE   FIRST   PEACE   CONFERENCE. 


CHAPTER  XII. 

THE  FIRST  PEACE  CONFERENCE. 

The  Russian  proposal  of  a  Peace  Conference. — Twelve 
days  after  the  signing  of  the  protocol  suspending  hostilities 
between  the  United  States  and  Spain,  the  Russian  Foreign 
Minister,  Count  Mouravieff,  took  the  first  steps  towards  The 
First  Peace  Conference  by  communicating  to  the  diplomatic 
representatives  at  St.  Petersburg  the  wish  of  the  Czar  that 
a  conference  be  called  which  should  seek  for  some  means 
of  "insuring  to  all  peoples  the  benefits  of  a  real  and  durable 
peace,  and,  above  all,  of  putting  an  end  to  the  progressive 
development  of  the  present  armaments."1  By  October  24, 
1898,  all  the  invitations  to  the  Conference'  had  been  formally 
accepted.2 

Subjects  for  consideration. — In  a  circular  of  January  11, 
1899  (New  Style),  Count  Mouravieff  offered  the  following 
subjects  for  the  consideration  of  the  Conference: 

"1.  An  understanding  not  to  increase  for  a  fixed  period 
the  present  effective  of  the  armed  military  and  naval  forces, 
and  at  the  same  time  not  to  increase  the  Budgets  pertain- 
ing thereto ;  and  a  preliminary  examination  of  the  means 
by  which  a  reduction  might  even  be  effected  in  future  in 
the  forces  and  Budgets  above  mentioned. 

"2.  To  prohibit  the  use  in  the  armies  and  fleets  of  any 
new  kind  of  firearms  whatever,  and  of  new  explosives,  or 
any  powders  more  powerful  than  those  now  in  use,  either 
for  rifles  or  cannon. 

"3.  To  restrict  the  use  in  military  warfare  of  the  formi- 
dable explosives  already  existing,  and  to  prohibit  the  throw- 
ing of  projectiles  or  explosives  of  any  kind  from  balloons 
or  by  any  similar  means. 

"4.  To  prohibit  the  use,  in  naval  warfare  of  submarine 
torpedo  boats  or  plungers,  or  other  similar  engines  of  de- 
struction; to  give  an  undertaking  not  to  construct,  in  the 
future,  vessels  with  rams. 

i  Holls,   The   Peace   Conference   at   The  Hague,   p.   8. 
2  Ibid.,  p.    14. 


ORGANIZATION   OF   THE   CONFERENCE.  129 


<<  i 


5.  To  apply  to  naval  warfare  the  stipulations  of  the 
Geneva  Convention  of  1864,  on  the  basis  of  the  Additional 
Articles  of  1868. 

"6.  To  neutralize  ships  and  boats  employed  in  saving 
those  overboard  during  or  after  an  engagement. 

"7.  To  revise  the  Declaration  concerning  the  laws  and 
customs  of  war  elaborated  in  1874  by  the  Conference  of 
Brussels,  which  has  remained  unratified  to  the  present  day. 

"8.  To  accept  in  principle  the  employment  of  good  of- 
fices, of  mediation  and  facultative  arbitration  in  cases 
lending  themselves  thereto,  with  the  object  of  preventing 
armed  conflicts  between  nations ;  to  come  to  an  understand- 
ing with  respect  to  the  mode  of  applying  these  good  offices, 
and  to  establish  a  uniform  practice  in  using  them."3 

The  powers  represented.— At  the  request  of  the  Russian 
Government  the  Queen  of  The  Netherlands  offered  The 
Hague  as  the  seat  of  the  Conference,  and  its  sessions  were 
opened  there  on  May  IS,  1899.  Twenty-six  powers  had 
sent  representatives  comprising  practically  all  of  Europe, 
and  in  addition  the  United  States,  Mexico,  China,  Japan, 
Persia  and  Siam.  ' '  Of  the  independent  Governments  of  the 
world,  the  Central  and  South  American  Republics,  the  Sul- 
tanates of  Morocco  and  Muscat,  the  Orange  Free  State,  the 
Principality  of  Monaco,  the  Republic  of  San  Marino  and 
the  Kingdom  of  Abyssinia,  were  "the  only  ones  not  repre- 
sented in  the  Peace  Conference."4  The  omission  of  the 
South  American  Republics  would  seem  to  have  been  un- 
fortunate. 

Organization  of  the  Conference. — The  Presidency  of  the 
Conference  was  naturally  conferred  on  the  first  Russian 
delegate,  Baron  de  Staal,  the  representative  of  the  Czar 
at  the  court  of  St.  James.  At  his  suggestion  it  was  agreed 
that  the  Conference  divide  itself  into  three  committees; 
the  first  of  these  to  consider  the  first  four  articles  of  Count 
Mouravieff's  Circular,  the  object  of  which  was  largely  eco- 
nomic ;  the  second,  to  consider  the  next  three  articles,  whose 
object  was  essentially  humanitarian;  and  the  third,  to  con- 
sider the  last  article,  which  dealt  with  arbitration.  Every 
state  was  to  be  represented  on  every  committee  by  a  mem- 
ber or  members  designated  by  the  ranking  member  of  the 

zlhid.,  pp.  25-26. 
*IMd.,  p.  332. 

9 


; 


130  THE    FIRST   PEACE    CONFERENCE. 

delegation.  Members  could  be  appointed  on  more  than  one 
committee,  it  being  possible  for  diplomatic  members  to  be 
on  every  committee.  Scientific  and  technical  delegates  might 
participate  in  the  full  meetings  of  the  Conference.  In  both 
the  conference  and  the  committees,  each  country  was  to 
have  one  vote.  Communications  to  the  press  of  the  pro- 
ceedings of  each  committee  were  to  be  made  through  a 
Bureau  in  conjunction  with  the  President.  Otherwise,  there 
was  to  be  absolute  secrecy.5 

Division  of  the  work  among  the  committees. — The  com- 
mittees were  divided  into  subcommittees,  in  which  most  of 
the  work  was  done.  Articles  2  and  3,  as  to  arms  and  ex- 
plosives, were  referred  to  the  military  subcommittee  of  the 
first  committee,  while  article  4,  as  to  torpedoes  and  other 
instruments  of  marine  warfare,  was  referred  to  the  naval 
subcommittee.  Most  of  the  propositions  in  the  military  sub- 
committee were  presented  by  Colonel  Gilinsky,  the  Russian 
delegate. 

Powders,  shells,  explosives  and  field  guns. — As  to  pow- 
ders, by  which  was  meant  the  propelling  force  of  projectiles 
as  distinguished  from  the  bursting  charge,  it  was  proposed 
that  none  should  be  employed  more  powerful  than  those 
already  in  use,  but  Captain  Crozier,  of  the  American  Dele- 
gation, pointed  out  that  perhaps  more  powerful  powders 
might  be  produced  which  would  explode  at  a  lower  tem- 
perature, thus  causing  less  injury  to  the  gun  and  being 
more  economical  than  existing  powders.  The  point  was  so 
well  taken  that  the  proposal  was  unanimously  rejected.  It 
was  also  proposed  to  forbid  the  use  of  mining  shells  in  field 
artillery,  but  the  proposal  was  defeated  by  eleven  votes  to 
ten.  The  proposition  that  no  new  explosives  should  be 
used,  nor  any  of  that  class  known  as  high  explosives,  was 
also  lost  by  a  vote  of  twelve  to  nine.  The  proposal  that  no 
new  field  guns,  superior  to  the  best  material  already  in  use 
in  any  country,  was  unanimously  rejected,  Russia  and  Bul- 
garia abstaining  from  voting.6 

The  throwing  of  projectiles  from  balloons. — "The  sub- 
committee first  voted  a  perpetual  prohibition  of  the  use  of 
balloons  or  similar  new  machines  for  throwing  projectiles 
or    explosives.      In    the    full   committee   this    subject   was 

zibid.,  pp.  63-64. 
6  Ibid.,  pp.  93-95. 


THROWING  OF  PROJECTILES  FROM  BALLOONS.  131 

brought  up  for  reconsideration  by  the  United  States  Dele- 
gate and  the  prohibition  was,  by  unanimous  vote,  limited 
to  cover  a  period  of  five  years  only.  The  action  taken  was 
for  humanitarian  reasons  alone,  and  was  founded  upon  the 
opinion  that  balloons,  as  they  now  exist,  form  such  an  un- 
certain means  of  injury  that  they  cannot  be  used  with  ac- 
curacy; that  the  persons  or  objects  injured  by  throwing 
explosives  from  them  may  be  entirely  disconnected  from 
any  conflict  which  may  be  in  process,  and  such  that  their 
injury  or  destruction  would  be  of  no  practical  advantage 
to  the  party  making  use  of  the  machines.  The  limitation 
of  the  interdiction  to  five  years'  operation  preserves  liberty 
of  action  under  changed  circumstances  which  may  be  pro- 
duced by  the  progress  of  invention."7 

Proposed  rule  as  to  muskets. — We  have  seen  that  the 
Conference  refused  to  prohibit  field  guns  superior  to  any 
already  in  use.  With  regard  to  muskets,  it  was  proposed 
that  no  Power  should  change  its  existing  type,  as  the  vari- 
ous types  in  use  were  considered  to  be  essentially  the  same, 
but  that  this  should  not  prevent  improvements  in  existing 
types.  As  no  agreement,  however,  could  be  reached  as  to 
the  difference  between  an  improvement  within  the  type  and 
an  entire  change  thereof,  no  result  was  reached.  One  of 
the  questions  discussed  under  this  head  was  the  prohibition 
of  automatic  muskets.  "The  states  voting  in  favor  of  the 
prohibition  were  Belgium,  Denmark,  Spain,  Holland,  Persia, 
Russia,  Siam,  Switzerland  and  Bulgaria  (nine).  Those  vot- 
ing against  it  were  Germany,  the  United  States,  Austria- 
Hungary,  Great  Britain,  Italy,  Sweden  and  Norway  (six). 
And  those  abstaining  were  France,  Japan,  Portugal,  Rou- 
mania,  Servia  and  Turkey  (six).  From  this  statement  it 
may  be  seen  that  none  of  the  great  Powers  of  the  world, 
except  Russia,  was  willing  to  accept  restrictions  with  re- 
gard to  military  improvements  when  the  question  of  in- 
crease of  efficiency  was  involved,  and  that  one  great  Power 
(France)  abstained  from  expressing  an  opinion  on  the  sub- 
ject."8 In  the  Full  Committee  the  question  was  put  aside 
for  the  consideration  of  a  future  conference,  as  was  also 
"the  use  of  new  means  of  destruction,  which  might  possibly 
have  a  tendency  to  come  into  vogue,  such  as  those  depend- 

7  Captain  Crozier's  Report,  Ibid.,  p.  509. 

8  Captain  Crozier's  Report,   pp.   509-510. 


132  THE    FIRST   PEACE    CONFERENCE. 

ing  upon  electricity  or  chemistry."9  Towards  all  these 
questions  the  United  States  delegation  took  the  position 
that  it  "did  not  consider  limitations  in  regard  to  the  use 
of  military  inventions  to  be  conducive  to  the  peace  of  the 
world."10 

Expanding  bullets. — The  subject  of  bullets  "gave  rise  to 
more  active  debate  and  to  more  decided  differences  of  view 
than  any  other  considered  by  the  subcommittee.  A  formula 
was  adopted  as  follows,  'the  use  of  bullets  which  expand 
or  flatten  easily  in  the  human  body,  such  as  jacketed  bul- 
lets, of  which  the  jacket  does  not  entirely  cover  the  core, 
or  has  incisions  in  it,  should  be  forbidden.' 

Position  of  the  British  Government. — "  When  this  subject 
came  up  in  the  Full  Committee  the  British  representative, 
Major-General  Sir  John  Ardagh,  made  a  declaration  of  the 
position  of  his  Government  on  the  subject,  in  which  he  de- 
scribed their  Dum-dum  bullet  as  one  having  a  very  small 
portion  of  the  jacket  removed  from  the  point,  so  as  to  leave 
uncovered  a  portion  of  the  core  of  about  the  size  of  a  pin- 
head.  He  said  that  this  bullet  did  not  expand  in  such  man- 
ner as  to  produce  wounds  of  exceptional  cruelty,  but  that 
on  the  contrary  the  wounds  produced  by  it  were  in  general 
less  severe  than  those  produced  by  the  Snider,  Martini- 
Henry,  and  other  rifles  of  the  period  immediately  preced- 
ing that  of  the  adoption  of  the  present  small  bore.  He 
ascribed  the  bad  reputation  of  the  Dum-dum  bullet  to  some 
experiments  made  at  Tubingen  in  Germany  with  a  bullet 
from  the  forward  part  of  which  the  jacket,  to  a  distance 
of  more  than  a  diameter,  was  removed.  The  wounds  pro- 
duced by  this  bullet  were  of  a  frightful  character,  and 
the  bullets  being  generally  supposed  to  be  similar  to  the 
Dum-dum  in  construction,  had  probably  given  rise  to  the 
unfounded  prejudice  against  the  latter." 

In  his  declaration  Sir  John  Ardagh  had  also  pointed  out 
that  after  the  battle  of  Omdurman  it  was  found  that  the 
bullets  then  in  use  had  not  been  sufficient  to  put  the 
dervishes  liors  de  combat,  and  that  for  use  against  them 
the  Dum-dum  bullet  had  been  manufactured.11 

Position  of  the  United  States. — "The  United  States  rep- 

o  Ibid.,  p.  511. 
io  Ibid.,  p.  510. 
ii  Ibid.,  p.  99. 


EXPANDING  BULLETS.  133 

resentative  here  for  the  first  time  took  part  in  the  discus- 
sion, advocating  the  abandonment  of  the  attempt  to  cover 
the  principle  of  prohibition  of  bullets  producing  unneces- 
sarily cruel  wounds  by  the  specification  of  details  of  con- 
struction of  the  bullet,  and  proposing  the  following  formula : 

"  'The  use  of  bullets  which  inflict  wounds  of  useless  cru- 
elty, such  as  explosive  bullets  and  in  general  every  kind 
of  bullet  which  exceeds  the  limit  necessary  for  placing  a 
man  immediately  liors  de  combat  should  be  forbidden.' 

"The  Committee,  however,  adhered  to  the  original  prop- 
osition, which  it  voted  without  acting  on  the  substitute  sub- 
mitted."12 

Upon  the  matter  coming  before  the  full  conference,  Cap- 
tain Crozier  presented  this  formula  with  the  following  ob- 
jections to  that  adopted  by  the  Committee : 

Objections  presented  by  Captain  Crozier. — "First,  that 
it  forbade  the  use  of  expanding  bullets,  notwithstanding 
the  possibility  that  they  might  be  made  to  expand  in  such 
regular  manner  as  to  assume  simply  the  form  of  a  larger 
calibre,  which  property  it  might  be  necessary  to  take  ad- 
vantage of,  if  it  should  in  the  future  be  found  desirable 
to  adopt  a  musket  of  very  much  smaller  calibre  than  any 
now  actually  in  use.  Second,  that  by  thus  prohibiting 
what  might  be  the  most  humane  method  of  increasing  the 
shocking  power  of  a  bullet  and  limiting  the  prohibition  to 
expanding  and  flattening  bullets,  it  might  lead  to  the  adop- 
tion of  one  of  much  more  cruel  character  than  that  pro- 
hibited. Third,  that  it  condemned  by  designed  implication, 
without  even  the  introduction  of  any  evidence  against  it, 
the  use  of  a  bullet  actually  employed  by  the  army  of  a 
civilized  nation."13 

Views  of  Great  Britain  and  the  United  States  overruled. 
— Notwithstanding  these  objections  the  conference  adopted 
the  formula  of  the  committee,  Great  Britain  and  the  United 
States  voting  no.  It  is  strange  that  the  position  of  the 
United  States  did  not  have  greater  weight  with  the  con- 
ference than  it  did.  The  reasoning  of  Captain  Crozier  in 
this  Committee  and  of  Captain  Mahan  in  the  Naval  Com- 
mittee seems   eminently  sound  and  convincing. 

Work  of  the  naval  subcommittee. — The  history  of  the 

12  Captain  Crozier's  Report,  Ibid.,  pp.  511-512. 
is  Ibid.,  p.  513, 


134  THE   FIRST   PEACE   CONFERENCE. 

naval  subcommittee  is  much  the  same  as  that  of  the  mili- 
tary. The  proposition  to  limit  the  calibre,  velocity  and 
length  of  guns  and  the  thickness  of  armor  plate  was  al- 
most unanimously  rejected.  More  than  a  majority  of  the 
governments  declared  their  readiness  to  cease  to  construct 
warships  armed  with  rams,  on  the  condition  of  unanimity, 
but  this  was  prevented  by  the  adverse  votes  of  Germany, 
Austria-Hungary,  Denmark  and  Norway  and  Sweden.  The 
subject  of  the  prohibition  of  new  types  of  rifles  and  naval 
guns  was  dismissed  with  the  wish  that  the  subject  should 
be  the  subject  of  further  study  on  the  part  of  the  various 
governments.14 

The  prohibition  of  projectiles  whose  sole  purpose  is  to 
spread  asphyxiating  gases. — One  subject  that  received  much 
attention  from  the  naval  subcommittee  was  the  prohibition 
of  the  use  of  projectiles,  the  sole  use  of  which  is,  on  burst- 
ing, to  spread  asphyxiating  or  deleterious  gases.  The  Uni- 
ted States  was  the  Only  country  voting  "no"  on  this  prop- 
osition, Great  Britain's  vote,  however,  being  conditioned 
on  unanimity.  The  reasons  which  Captain  Mahan,  the  dele- 
gate of  the  United  States  gave  for  his  action,  and  in  this 
he  was  supported  by  the  whole  delegation  of  the  United 
States,  were:  "1.  That  no  shell  emitting  such  gases  is  as  yet 
in  practical  use,  or  has  undergone  adequate  experiment, 
consequently  a  vote  taken  now  would  be  taken  in  ignor- 
ance of  the  facts  as  to  whether  the  results  would  be  of 
a  decisive  character,  or  whether  injury  in  excess  of  that 
necessary  to  attain  the  end  of  warfare,  the  immediate  dis- 
abling of  the  enemy,  would  be  inflicted.  2.  The  reproach 
of  cruelty  and  perfidy,  addressed  against  these  supposed 
shells,  was  equally  uttered  formerly  against  firearms  and 
torpedoes,  both  of  which  are  now  employed  without  scruple. 
Until  we  knew  the  effects  of  such  asphyxiating  shells  there 
was  no  saying  whether  they  would  be  more  or  less  merciful 
than  missiles  now  permitted.  3.  That  it  was  illogical,  and 
not  demonstrably  humane,  to  be  tender  about  asphyxiating 
men  with  gas,  when  all  were  prepared  to  admit  that  it  was 
allowable  to  blow  the  bottom  out  of  an  ironclad  at  mid- 
night, throwing  four  or  five  hundred  men  into  the  sea  to 
be  choked  by  water,  with  scarcely  the  remotest  chance  of 
escape.     If,  and  when,  a  shell  emitting  asphyxiating  gases 

I*  Ibid.,  pp.  117-118. 


WORK  OF  THE  CONFERENCE.  135 

alone  has  been  successfully  produced,  then,  and  not  before, 
men  will  be  able  to  vote  intelligently  on  the  subject."15 
This  argument  would  appear  to  be  unanswerable. 

Adaptation  of  the  principle  of  the  Geneva  Convention  to  . 
maritime  warfare  and  the  adoption  of  the  convention  for 
the  regulation  of  warfare  on  land. — The  second  committee, 
to.  which  were  assigned  articles  5,  6  and  7  of  the  Russian 
Circular,  was  divided  into  two  subcommittees,  the  first  deal- 
ing with  the  adaptation  to  naval  warfare  of  the  Geneva 
Convention  of  1864,  on  the  basis  of  the  Additional  Articles 
of  1868,  and  the  neutralization  of  boats  or  launches  em- 
ployed in  the  rescue  of  the  shipwrecked  during  or  after 
naval  battles;  and  the  second,  dealing  with  the  revision  of 
the  Project  of  Declaration  of  the  Brussels  Conference  of 
1874. 

Naval  Red  Cross  Convention.— Of  the  Convention  apply-  W 
ing  the  principles  of  the  Geneva  Convention  to  naval  war- 
fare it  is  perhaps  sufficient  to  say  that  it  was  a  complete 
remodeling  of  the  Additional  Articles  of  1868,  and  that  both 
in  form  and  substance  it  evidenced  the  care  and  study 
which  had  been  given  to  the  subject  in  the  interim. 

Regulation  of  the  Laws  and  Customs  of  War  on  Land. — 
Nothing  like  the  same  changes  had  to  be  made  in  the  Pro- 
ject drawn  up  at  Brussels  for  the  regulation  of  the  Laws 
and  Customs  of  "War  on  Land.  Changes  were  made,  how- 
ever, in  order  to  guard  more  surely  against  any  implication 
of  rightful  authority  on  the  part  of  one  belligerent  over 
the  subjects  of  the  other  and  articles  were  added  for  the 
increased  comfort  of  prisoners  of  war  and  for  the  recogni- 
tion of  societies  formed  for  their  aid.  These  were  largely 
due  to  the  efforts  of  the  eminent  Belgian,  M.  Romberg- 
Nisard,  who,  since  the  Franco-German  War,  had  devoted 
much  of  his  energy  to  securing  their  adoption.  In  the  main, 
however,  what  was  done  was  to  adopt  the  substance  of  the 
work  of  the  Brussels  Conference,  so  that  the  discussions 
there  held  are  the  best  commentary  we  have  on  The  Hague 
Regulations.  But  the  form  of  the  work  was  changed.  In- 
stead of  a  Declaration  it  was  put  into  the  form  of  a  Con- 
vention by  which  the  Contracting  Powers  agreed  to  issue 
instructions  to  their  armed  land  forces,  which  should  be 
in  conformity  with  the  Regulations  respecting  the  Laws 

™Ibid.,  pp.  494-495. 


136  THE   FIRST   PEACE   CONFERENCE. 

and  Customs  of  War  on  Land  annexed  thereto.  The 
placing  of  the  rules  of  warfare  in  the  Annex  instead  of  in 
the  Convention  did  not  detract  from  their  obligatory  char- 
acter and  it  had  three  advantages.  It  made  the  issuance 
to  the  armies  of  regulations  conforming  thereto  obligatory, 
it  allowed  the  terminology  of  the  regulations  to  be  adapted 
to  the  needs  of  the  different  armies  and  finally  it  satisfied 
the  scruples  of  the  smaller  Powers,  who  felt  that  it  made 
any  implication  of  an  acknowledgment  on  their  part  of 
the  rightful  authority  of  a  hostile  belligerent  over  their 
nationals  less  likely. 

Men  of  special  distinction. — Of  the  many  able  and  dis- 
tinguished men  of  the  second  subcommittee  it  is  difficult  to 
mention  some  without  slighting  others,  but  it  may  be  per- 
missible to  refer  especially  to  the  President,  M.  de  Martens, 
of  Russia,  who  enjoyed  the  unique  honor  of  having  also 
been  a  delegate  to  the  Conference  of  Brussels,  and  to  the 
Secretary,  M.  Edouard  Rolin,  of  Ghent,  son  of  Rolin-Jae- 
quemyns,  and  now  Editor-in-Chief  of  the  Revue  De  Droit 
International,  through  whose  readiness  of  comprehension 
and  fairness  and  accuracy  of  statement  many  a  serious 
difficulty  was  avoided. 

Declaration  of  United  States  as  to  exemption  of  private 
property  at  sea  from  capture. — Among  the  notable  decla- 
rations made  at  the  Conference  was  that  of  Mr.  White,  on 
behalf  of  the  United  States,  in  favor  of  the  exemption  of 
private  property  at  sea  from  capture.  The  Conference, 
however,  felt  that  the  adoption  of  such  a  declaration  was 
beyond  its  powers,  and  so  referred  the  matter  to  a  future 
Conference. 

Final  Act  of  the  Conference. — The  Conventions  and  Dec- 
larations were  not,  however,  the  entire  work  of  the  Con- 
ference.    After  mentioning  them,  the  Final  Act  goes  on : 

"Guided  by  the  same  sentiments,  the  Conference  has 
adopted  unanimously  the  following  resolution: 

"  'The  Conference  is  of  opinion  that  the  restriction  of 
military  charges,  which  are  at  present  a  heavy  burden  on 
the  world,  is  extremely  desirable  for  the  increase  of  the 
material  and  moral  welfare  of  mankind.' 

;'It  has,  besides,  formulated  the  following  wishes: 

Revision  of  the  Geneva  Convention. — "1.  The  Conference, 
taking  into  consideration  the  preliminary  steps  taken  by 


FINAL   ACT.  137 

the  Swiss  Federal  Government  for  the  revision  of  the  Gene- 
va Convention,  expresses  the  wish  that  steps  may  be  shortly 
taken  for  the  assembly  of  a  Special  Conference  having  for 
its  object  the  revision  of  that  Convention. 

"This  wish  was  voted  unanimously. 

Rights  and  duties  of  neutrals. — "2.  The  Conference  ex- 
presses the  wish  that  the  questions  of  the  rights  and  duties 
of  neutrals  may  be  inserted  in  the  programme  of  a  Confer- 
ence in  the  near  future. 

Changes  in  rifles  and  naval  guns. — "3.  The  Conference 
expresses  the  wish  that  the  questions  with  regard  to  rifles 
and  naval  guns,  as  considered  by  it,  may  be  studied  by  the 
governments  with  the  object  of  coming  to  an  agreement 
respecting  the  employment  of  new  types  and  calibres. 

Limitation  of  war  budgets  and  of  land  and  naval  forces. 
— "4.  The  Conference  expresses  the  wish  that  the  govern- 
ments, taking  into  consideration  the  proposals  made  at 
the  Conference,  may  examine  the  possibility  of  an  agree- 
ment as  to  the  limitation  of  armed  forces  by  land  and  sea, 
and  of  war  budgets. 

Inviolability  of  private  property  at  sea. — "5.  The  Con- 
ference expresses  the  wish  that  the  proposal,  which  con- 
templates the  declaration  of  the  inviolability  of  private  prop- 
erty in  Naval  Warfare,  may  be  referred  to  a  subsequent 
Conference  for  consideration. 

Bombardment  of  towns  by  naval  forces. — "6.  The  Con- 
ference expresses  the  wish  that  the  proposal  to  settle  the 
question  of  the  bombardment  of  ports,  towns,  and  villages 
by  a  naval  force  may  be  referred  to  a  subsequent  Conference 
for  consideration. 

"The  last  five  wishes  were  voted  unanimously,  saving 
some  abstentions."16 

Appreciation  of  the  work  of  the  Conference. — The  final 
session  of  the  Conference  was  held  on  July  29,  1899,  more 
than  two  months  after  it  first  assembled.  Aside  from  the 
increased  prominence  the  Conference  gave  to  the  principle 
of  arbitration,  it  will  always  deserve  a  high  place  in  the 
history  of  the  laws  of  war  for  its  adaptation  of  the  princi- 
ples of  the  Geneva  Convention  to  naval  warfare,  and  for 
the  adoption  and  improvement  of  the  rules  concerning  the 
laws  and  customs  of  war  laid  down  at  Brussels  in  1874. 

i6/&td.,  pp.  377-379. 


138  THE  WAR  IN  SOUTH  AFRICA. 


CHAPTER  XIII. 

THE   WAR   IN   SOUTH    AFRICA. 

Less  than  the  three  months  after  the  First  Peace  Con- 
ference adjourned,  Great  Britain  was  engaged  in  a  strug- 
gle with  the  South  African  Republics,  which  for  desperate- 
ness  rivaled  that  which  the  ancestors  of  the  Boers  had 
maintained  against  Philip  II.  Into  the  causes  of  wars  it 
it  not  the  purpose  of  this  work  to  go. 

The  use  of  expanding  bullets. — Among  the  early  charges 
made  was  that  of  the  use  of  expanding  bullets.  England  had 
not  signed  the  Declaration  prohibiting  them,  and,  as  we  have 
seen,  claimed  that  those  she  had  used  were  not  unnecessarily 
cruel.  Nevertheless,  she  did  not  use  them  during  the  war 
and  her  reason  for  not  doing  so  is  given  in  the  following 
extract  from  the  report  of  the  Commission  appointed  to  in- 
vestigate the  conduct  of  the  war : 

"Moreover  the  reserve  of  151,000,000  rounds  included 
about  66,000,000  rounds  which,  as  events  went,  were  not 
available  at  all  for  the  purposes  of  this  war.  This  was  the 
ammunition  known  as  Mark  IV.  It  had  been  found  from 
the  experiences  of  the  Chitral  campaign  that  the  Mark  II 
ammunition  then  in  use  was  not  deadly  enough  to  stop  a 
rush  of  religious  fanatics,  and  steps  were  taken  which  with 
their  consequences  in  the  summer  of  1899,  are  best  described 
in  the  words  of  Sir  Henry  Brackenbury : 

"  'In  India  they  produce  the  Dum-dum  ammunition,  in 
which  the  head  of  the  bullet  is  not  covered  by  the  nickel  en- 
velope. In  this  country  we  produced  a  bullet  in  which  there 
is  a  small  cylindrical  hole  in  the  lead  at  the  top  and  this  is 
left  as  an  opening,  and  is  not  covered  over  with  the  nick- 
el. This  bullet  was  an  expanding  bullet.  We  had  every  in- 
tention of  using  this  bullet  and  making  it,  in  fact,  the  bullet 
for  the  British  Army  all  over  the  world,  and,  I  think  about 
66,000,000  of  it,  up  to  the  31st  March,  1899,  had  been  de- 
livered, and  formed  part  of  our  stock  of  172,000,000.  It  was 
known  as  Mark  IV.    We  had  an  exceptionally  hot  summer 


EXPANDING  BULLETS.  139 

in  1899,  and  it  was  found  that,  especially  in  the  hands  of 
Volunteers,  where  the  rifles  had  not  been  kept  particularly 
clean,  there  were  several  instances  in  which  this  bullet 
stripped,  to  use  the  technical  term,  that  is  to  say,  the  lead  of 
the  bullet  squirted  out  through  this  opening  in  the  top  of 
the  nickel  envelope,  and  left  the  envelope  behind  in  the  rifle. 
Then,  if  there  was  a  second  load,  you  were  apt  to  get  an 
accident,  a  blow  back  in  the  breach.  This  happened  at  Bis- 
ley,  and  it  happened  in  several  other  places  with  Volunteers. 
There  could  be  very  little  doubt  of  what  was  the  cause  of 
it;  it  was  due  to  exceptional  heat,  and  it  required  a  rifle 
which  was  not  clean.  We  carried  out  a  great  number  of  ex- 
periments to  try  to  reproduce  this,  and  we  always  found  it 
most  difficult  to  reproduce,  and  the  only  conditions  under 
which  we  could  reproduce  it  were  the  conditions  of  great 
heat  and  a  dirty  rifle.  Those  two  conditions  of  great  heat 
and  a  dirty  rifle  were  exactly  the  conditions  which  were 
likely  to  occur  in  war,  and,  therefore,  it  seemed  to  me,  and 
I  so  advised  the  Commander-in-Chief  and  the  Secretary  of 
State,  that  none  of  this  ammunition  should  be  considered 
serviceable  for  war,  and  consequently,  66,000,000,  or  there- 
abouts, of  our  reserve  was  noneffective  for  purposes  of  war. 
It  was  about  the  same  time  also  in  that  summer  that  The 
Hague  Convention  sat,  and  passed  a  resolution  against  all 
expanding  bullets,  but  our  Government  was  not  a  party  to 
that  Convention,  and  they  declined  to  be  bound  by  it,  but, 
nevertheless,  it  is  impossible  to  avoid  a  feeling  that  it  had  a 
certain  moral  effect,  and  that  it  was  not  considered  desirable^ 
to  use  an  expanding  bullet  in  time  of  war.  The  reason  why 
we  did  not  use  the  expanding  bullet  in  South  Africa  was  not 
The  Hague  Convention,  however,  but  because  the  Mark  IV 
ammunition,  our  expanding  ammunition,  had  proved  unfit  io~ 
be  used  in  war.  Consequently  about  two-fifths  of  our  reserve 
of  ammunition  could  not  be  used.  We  were  driven  to  great 
straits  at  one  time,  because  we  had  actually  got  reduced  in 
this  country  to  two  or  three  boxes  of  Mark  II  ammunition; 
so  that  if  we  had  had  to  go  to  war  with  a  European  Power 
we  should  have  had  to  fight  them  with  expanding  bullets.' 
"The  War  Office  sent  out  4,000,000  rounds  of  Mark  IV 
ammunition  to  South  Africa  in  the  early  summer  of  1899, 
but  on  the  15th  July  telegraphed  out  orders  that  it  was 


140  THE  WAR  IN  SOUTH   AFRICA. 

to  be  used  in  practice  only,  and  on  the  17th  October  directed 
that  it  should  all  be  sent  home."1 

It  is  quite  certain  that  occasionally  on  both  sides  during 
the  war  expanding  and  even  explosive  bullets  used  in 
hunting  were  made  use  of,  but  this  was  very  exceptional 
and  happened  in  spite  of  the  earnest  effort  of  the  authorities 
to  prevent  it. 

Use  of  natives  as  soldiers.— It  was  early  apprehended  that 
the  natives  would  be  used  as  soldiers,  and  the  apprehension 
was  natural  in  view  of  the  great  preponderance  of  the 
native  population.  There  seems  to  be  no  question,  however, 
that  neither  belligerent  made  general  use  of  the  Kaffirs  as 
soldiers,  although  ample  opportunity  was  certainly  offered 
the  British  from  the  hostility  of  the  natives  towards  the 
Boers.  Both  armies  made  use  of  them  for  teamsters,  serv- 
ants, guides  and  scouts,  and  to  this  it  would  seem  no  serious 
objection  can  be  made.2  Kaffirs  connected  with  the  British 
forces  were,  however,  viewed  with  suspicion  by  the  Boers, 
and  many  cases  of  their  harsh  treatment  by  the  latter 
reached  the  ears  of  the  British  authorities.  Sir  A.  Conan 
Doyle  says  that  "when  it  was  found  that  they  were  sys- 
tematically shot  they  were  given  rifles,  as  it  was  inhuman 
to  expose  them  to  death  without  any  means  of  defense."3 
Likewise,  on  the  occasion  of  Boer  raids  into  Zululand,  it  was 
declared  by  the  British  Government  that  if  the  Boers  in- 
vaded "native  districts"  the  natives  would  be  encouraged 
to  defend  themselves.4  A  more  questionable  proceeding 
was  the  use  of  armed  Kaffirs  late  in  the  war  for  the  de- 
fense of  the  railroad  lines.5  If  the  destruction  of  the  rail- 
way lines  had  always  been  illegal,  the  use  of  the  armed 
natives  in  their  defense  might  have  been  justified,  but,  as 
we  shall  see  later,  this  was  not  the  case. 

Combatant  character  of  Boers. — In  The  Hague  Regulations 
are  enumerated  four  conditions  which  entitle  those  satis- 
fying them  to  the  privileges  of  soldiers,  two  of  these  being 
the    carrying   of   some   distinctive   sign   recognizable   at   a 

i  Report   of    His    Majesty's    Commissioners    on    the    War    in    South 
Africa,  p.  86. 

2  A.  Conan  Doyle,  The  War  in  South  Africa,  p.   120. 
s  A.  Conan  Doyle,  The  War  in  South  Africa,  p.  121. 
4  Pari.  Debates,  Fourth  Series,  Vol.  LXX1X,  pp.  58,  558. 
s  Doyle,  The  War  in  South  Africa,  p.  121. 


COMBATANT  CHARACTER  OF  BOERS.  141 

distance  and  carrying  arms  openly.6  It  is  questionable 
whether  the  Boers  always  complied  with  these  two  con- 
ditions,7 but  this  fact  is  not  in  itself  conclusive  of  wrong- 
doing on  their  part,  as  the  four  conditions  enumerated  in 
The  Hague  Regulations  were  intended  to  insure  combatant 
rights  to  those  satisfying  them,  not  necessarily  to  place 
others  not  satisfying  them  outside  the  combatant  class. 
Cases  not  coming  within  the  terms  of  the  provisions  were 
to  be  left  to  the  unwritten  law  of  nations.  Great  Britain, 
at  both  Brussels  and  The  Hague,  had  taken  a  high  stand 
with  regard  to  the  right  of  the  population  to  participate 
in  the  defense  of  its  country,  and,  as  might  have  been  ex- 
pected, seems  to  have  made  no  objection  to  the  Boer  forces 
on  account  of  their  at  times  informal  costume,  although 
in  the  early  stages  of  the  war  the  Boers  invaded  British 
territory  and  so  were  not  strictly  fighting  in  defense  of 
their  own  country.  The  refusal  of  the  British  authorities 
to  acknowledge  the  belligerent  character  of  the  Boer  forces 
in  the  later  stages  of  the  war  seems  to  have  been  caused 
by  their  feeling  of  the  uselessness  of  the  guerilla  struggle 
rather  than  by  the  noncompliance  of  the  Boer  forces  with 
the  conditions  necessary  to  entitle  them  to  combatant  priv- 
ileges. 

Charges  and  countercharges. — A  practice  condemned  by 
the  laws  of  war  is  fighting  in  the  uniform  of  the  enemy, 
and  of  this  individual  Boers  were  evidently  guilty.8  Charges 
of  violation  of  the  white  flag  and  of  the  Geneva  Convention 
were  made  on  both  sides,  and  the  charge  of  not  giving 
quarter  was  made  against  a  small  detachment  of  British 
soldiers  at  Elandslaagte  ;9  but  most  of  these  charges  were 
either  denied  or  explained.  No  war,  however,  can  be  en- 
tirely free  from  such  incidents,  and  the  authorities  on  both 
sides  seem  to  have  kept  them  at  a  minimum.  With  regard 
to  the  treatment  of  prisoners,  and  the  sick  and  wounded, 
there  appears  to  have  been  little  of  which  to  complain, 
•  except  possibly  the  unpreparedness  of  the  British  author- 
ities for  the  care  of  the  sick  and  wounded  at  the  outbreak 


6  Article   1. 

7  Doyle,  The  War  in  South  Africa,  pp.   112-118;   F.  Despagnet,  La 
Guerre   Sud-Africaine,   p.    107. 

s  Doyle,  p.  118. 

9  Despagnet,  La  Guerre  Sud-Africaine,  p.  132. 


142  THE  WAR  IN  SOUTH  AFRICA. 

of  the  war.10  During  the  later  part  of  the  war  the  British 
authorities  refused  to  allow  neutral  field  hospitals  to  pro- 
ceed to  the  relief  of  the  Boers  on  account  of  the  abuse 
which  had  been  made  of  them  earlier  in  the  war.  Thus, 
it  was  reported  that  the  mission  sent  by  the  Committee  of 
Antwerp  was  the  means  of  volunteers  joining  the  Boer  army 
under  the  protection  of  the  Red  Cross,  and  the  Dutch  field 
hospital  which  left  July  5,  1900,  was  immediately  arrested 
for  carrying  information  to  the  enemy,  and  its  male  con- 
tingent retained  as  prisoners  for  a  considerable  time.11 

Embargo. — An  interesting  case  of  embargo  was  the  forced 
return  of  a  British  ship  which  had  left  Durban,  in  Natal, 
for  Lorenzo  Marques,  and  the  compulsory  disembarkment 
of  all  the  passengers  not  of  British  nationality.12 

Fears  for  the  gold  mines. — It  was  very  much  feared  that 
the  Boers  would  seek  revenge  on  the  owners  of  the  gold 
mines,  wThom  they  considered  largely  responsible  for  their 
troubles,  by  wrecking  the  mining  plants.  Suggestions  to 
that  effect  were  made  to  the  Boer  Government,  but  they 
were  never  carried  out,  and  the  British  took  possession  of 
the  mines  substantially  uninjured.13  The  Boer  Government, 
however,  needed  the  output  of  the  mines  in  order  to  carry 
on  the  war,  and  requisitioned  in  all,  it  is  said,  £450,000. 
But,  in  consequence  of  many  of  the  concessionary  compa- 
nies leaving  the  country,  the  government  was  compelled 
to  work  the  mines  itself.14 

Refusal  of  the  British  Government  to  recognize  forfeitures 
and  alienations. — In  the  London  Times  of  January  16,  1900, 
it  is  stated  that  all  mines  were  threatened  with  confiscation 
which  did  not  produce  monthly  30  percent  of  their  average 
yield,  taking  the  three  months  preceding  the  war  as  the 
basis  of  the  calculation.15  Possibly  this  was  the  occasion 
of  the  notice  of  January  26,  1900,  that  the  British  Gov- 
ernment would  not  recognize  the  validity  of  forfeitures  of 
property  within  the  Transvaal  or  The  Orange  Free  State, 
or  of  charges,  fines,  or  encumbrances  of  whatsoever  descrip- 

io  Report  of  Royal  Commission  on  Care  and  Treatment  of  Sick  and 
Wounded  during  the  South  African  Campaign,  p.  4. 

ii  Despagnet,   La   Guerre   Sud-Africaine,   pp.   371-374. 

12  Ibid.,  p.  139. 

is  Blue  Book,  South  Africa,   1901    (cd.  547),  p.  56. 

14  Despagnet,  La  Guerre  Sud-Africaine,  p.  142. 

is  Ibid.,  p.  142. 


COMMANDEERING  OF  BRITISH  SUBJECTS.  143 

tion  declared,  levied  or  charged  upon  such  property,  or 
of  conveyances  of  the  same  made  subsequently  to  the  be- 
ginning of  the  war  by  the  two  governments.16  On  March 
19  this  was  supplemented  by  a  Proclamation  refusing  to 
recognize  alienations  of  property,  whether  of  lands,  rail- 
way mines  or  mining  rights  made  by  the  two  governments 
subsequent  to  the  date  of  the  Proclamation.17  Neither  of 
these  measures,  it  would  seem,  went  beyond  the  right  of 
the  British  Government.  As  it  was  probable  that  most 
of  the  forfeitures  would  be  made  for  complicity  with  the 
British  cause,  it  would  have  been  most  ungrateful  for  the 
British  Government  to  have  recognized  their  validity.  As 
to  the  second  measure,  the  success  of  the  British  arms 
was  apparently  so  certain  at  the  time  of  its  promulgation 
that  the  grant  of  any  concession,  or  the  alienation  of  any 
public  property,  must  have  seemed  to  the  British  author- 
ities merely  an  attempt  to  deprive  them  of  the  fruits  of 
victory  and  not  the  exercise  of  legitimate  governmental 
power. 

Commandeering  of  British  subjects. — Complaints  were 
early  made  to  the  British  authorities  that  the  Orange  Free 
State  was  compelling  British  subjects  to  join  its  forces,  and 
in  a  telegram  of  October  11,  1899,  Lord  Milner  inquired 
whether  it  was  true  that  British  subjects,  who  had  never 
taken  the  oath  required  by  law,  had  been  so  treated  on 
the  ground  of  residence  or  of  possessing  property  in  the 
state.18  President  Steyn  replied  by  telegraph  on  the  same 
day  that  "No  one  is  regarded  or  treated  as  a  burgher  who 
has  not  been  with  his  knowledge  and  consent  put  on  the 
burgher  list  and  exercised  in  elections  or  otherwise  the  priv- 
ileges of  burghers."19  Nevertheless,  complaints  continued 
to  be  made  and  with  great  positiveness  by  Lord  Milner.20 
It  is  also  reported  that  foreign  residents  generally  were 
compelled  to  enter  the  service  of  the  Free  State.21 

Treatment  of  British  subjects  in  the  Transvaal  and  of 
dangerous  persons  in  British  Territory. — British  subjects 
in  the  Transvaal  were  required  to  leave  the  country  on 

i6  Pari.  Papers,   1900,  Vol.  LVI    (ed.  -53). 
"Pari.  Papers,  1900,  Vol.  LVI    (cd.  -128). 
is  Pari.  Papers,  1900,  LVI    (cd.  -43),  p.   125. 
is  Pari.  Papers,  1900,  LVI    (cd.  -43),  p.  205. 

20  Pari.  Papers,  1900,  LVI    (cd.  -261),  p.  9. 

21  For  liability  of  foreign  residents  to  military  service,  see  infra, 
p.  213. 


14-1  THE  WAR  IN   SOUTH  AFRICA. 

the  outbreak  of  the  war,  unless  they  received  special  per- 
mission to  remain.  Many,  however,  whether  with  special 
permission  or  not,  did  remain,  but  in  certain  places  were 
subjected  to  subsequent  expulsion.22  The  British  also  had 
to  expel  from  their  territory  individuals  whose  presence 
appeared  to  be  dangerous.  Probably  in  some  cases  indi- 
viduals were  expelled  on  insufficient  ground.  An  assurance 
was  given  by  Great  Britain  to  Germany  that  reparation 
would  be  made  where  the  expulsion  of  the  latter 's  subjects 
was  unjustified.23 

The  annexation  of  the  Boer  Republics.— So  far  the  con- 
duct of  the  British  has  not  been  open  to  serious  criticism. 
With  regard  to  their  annexation  of  the  two  republics,  there 
is  more  room  for  doubt.  It  has  become  too  well  established 
in  the  laws  and  customs  of  war  to  need  elaboration,  that 
conquest  is  not  complete  until  substantial  resistance  has 
ceased,  and  that  until  then  sovereignty  remains  where  it 
was  before  the  war,  so  that  previous  to  that  time  the  an- 
nexation of  territory  is  improper.  It  was  claimed  by  the 
British  that  the  Boers  proclaimed  the  annexation  of  Brit- 
ish territory  earlier  in  the  war,  but  this  the  Presidents  of 
the  two  Republics  denied ;  and  it  does  not  appear  that  the 
British  Government  justified  its  action  on  the  ground  of 
reprisals.  Leaving  that  out  of  account,  subsequent  events 
show  that  the  annexations  were  premature,  and  that  many 
of  the  claims  to  obedience,  made  in  proclamations  in  con- 
sequence, were  unjustified.  But  "hindsight  is  better  than 
foresight,"  and  it  does  not  appear  than  the  British  author- 
ities were  altogether  unreasonable  imthinking  the  war  prac- 
tically at  an  end  at  the  time  of  the  annexations.  A  year 
later  the  end  of  the  war  seemed  much  further  off  than  it 
did  then.  Of  this  fact  no  stronger  evidence  can  be  de- 
manded than  the  letter  of  President  Steyn  to  Lord  Kitch- 
ener somewhat  more  than  a  year  later,  in  which  he  said: 

Letter  of  President  Steyn  to  Lord  Kitchener  on  the  re- 
trogression in  British  affairs  from  the  middle  of  1900. — 
"I  also  note  that  Your  Excellency  assumes  that  our  strug- 
gle is  hopeless.  I  do  not  know  whereon  Your  Excellency 
founds  your  assumption.  Let  us,  for  a  moment,  compare 
our  respective  positions  now  with  those  of  a  year  ago. 

22  Despagnet,  pp.  143,  224,  et  seq. 

23  Ibid.,  p.  225. 


ANNEXATION  OF  BOER  REPUBLICS.  145 

"A  year  ago,  after  the  surrender  of  General  Prinsloo 
the  Cape  Colony  was  altogether  peaceful  and  free  from 
our  commandos.  The  Orange  Free  State  was  almost  totally 
in  your  hands,  not  alone  capital,  railway  line,  and  other 
towns,  but  also  the  whole  country,  except  there  where 
Commandant  Haasbroek  was  with  his  commando,  and  it 
was  almost  the  same  in  the  South  African  Republic.  That 
country  was  altogether  in  your  hands,  excepting  where 
General  Delarey  was  with  his  commando,  and  General  Botha 
with  his,  in  the  back  country — the  Boschveld.  How  do 
matters  stand  today?  The  Cape  Colony  is,  so  to  speak, 
filled  with  our  commandos,  and  they  are  in  reality  in  pos- 
session of  the  greater  portion  of  that  Colony,  and  trek  about 
as  they  wish,  and  we  have  continually  many  of  our  race 
and  others  joining  us,  thereby  protesting  against  the  gross 
injustice  done  to  the  Republics. 

"In  the  Orange  Free  State  I  freely  acknowledge  that 
Your  Excellency  is  in  possession  of  the  capital,  railways, 
and  a  few  other  towns  not  lying  on  the  railway,  but  that 
is  the  extent  of  your  possessions. 

"The  whole  Orange  Free  State,  with  the  above  excep- 
tions, is  in  our  possession.  In  the  majority  of  the  chief 
towns  Landdrosts  have  been  appointed  by  us,  and  where 
the  chief  towns  are  not  in  our  possession  the  Landdrosts 
are  appointed  in  the  districts.  Law  and  order  in  the 
Orange  Free  State  are  maintained  by  us  and  not  by  Your 
Excellency.  In  the  Transvaal  the  conditions  are  similar. 
There  also  law  and  order  are  maintained  by  the  magistrates 
appointed  by  the  Government. 

"Allow  me  to  remark  that  your  Excellency's  jurisdiction 
extends  only  as  far  as  your  cannon  can  reach."24 

This  confirmed  by  Sir  Alfred  Milner's  letter  of  February 
6,  1901. — The  general  purport  of  this  as  to  the  retrogres- 
sion in  British  affairs  from  the  middle  of  1900  is  confirmed 
by  Sir  Alfred  Milner's  letter  to  Mr.  Chamberlain  of  Feb- 
ruary 6,  1901. 25 

The  proclamations  following  annexation. — From  the 
steps  taken  immediately  thereafter,  it  is  evident  that  the 
annexation  of  the  Orange  Free  State,  at  least,  was  not 
intended  to  be  a  dead  letter.    The  Proclamation  of  annexa- 

24  Blue  Book,   1902,  Vol.   67    (cd.   903),  p.   84. 

25  Blue  Book,   1901,  Vol.  47    (cd.   547),  p.  55. 

10 


146  THE  WAR  IN  SOUTH  AFRICA. 

tion  was  issued  May  24,  1900.  A  week  later  Lord  Roberts 
declared  "that  the  Orange  River  Colony  is,  as  a  temporary 
measure,  and  until  further  notice,  placed  under  martial 
law,  as  such  law  is  understood  and  administered  in  British 
territory  and  by  British  officers."26 

By  another  Proclamation,  of  the  following  day,  he  warned 
all  inhabitants  of  the  Orange  River  Colony  who  should  be 
found  in  arms  fourteen  days  thereafter,  that  they  would 
be  liable  to  treatment  as  rebels  and  to  suffer  in  person  and 
property  accordingly.  He  also  required  the  surrender  of 
arms  and  ammunition  under  penalty.27 

Injustice  of  treating  those  "on  commando"  as  rebels. — 
While  few  appear  to  have  been  brought  before  the  courts- 
martial  on  the  mere  charge  of  bearing  arms,  it  is  probably 
only  too  true  that  the  threats  in  this  proclamation  were 
at  times  carried  out  by  the  burning  of  farms;  for  in  the 
list  prepared  by  the  British  Government  of  the  farms  that 
were  burnt,  the  only  cause  assigned  in  many  cases  was 
that  the  owner  was  "on  commando."28  The  punishment 
thus  inflicted  was  most  unfortunate  as  well  as  most  un- 
just, and  apparently  it  had  much  to  do  with  the  renewed 
activity  of  the  Boers  and  the  prolongation  of  the  war.  The 
injustice  of  treating  those  "on  commando"  as  rebels  was 
so  manifest  that  by  a  proclamation  of  September  1,  1900, 
Lord  Roberts  declared  that  only  those  burghers  resident 
in  the  Orange  River  Colony,  who  had  not  been  continuously 
"on  commando"  since  a  time  prior  to  the  annexation,  were 
considered  as  subjects  of  the  Queen,  and  that  burghers 
who  had  been  so  on  commando,  should,  if  captured,  be 
treated  as  prisoners  of  war.29 

The  Oath  of  Neutrality. — One  of  the  first  steps  taken 
by  Lord  Roberts  on  entering  Bloemfontein,  in  March,  1900, 
was  to  issue  a  proclamation,  the  main  part  of  which  reads : 
"All  burghers  who  have  not  taken  a  prominent  part  in  the 
policy  which  has  led  to  the  war  between  Her  Majesty  and 
the  Orange  Free  State,  or  commanded  any  forces  of  the 
Republic,  or  commandeered  or  used  violence  to  any  British 
subjects,  and  who  are  willing  to  lay.  down  their  arms  at 

26  Pari.  Papers,  1900,  Vol.  50   (ed.  -420),  p.  0. 
27 Pari.  Papers,  1900,  Vol.  50   (ed,  -420),  p.  8. 

28  Pari.  Papers,   1901,  Vol.  47    (ed.  -524). 

29  Pari.  Papers,  1900,  Vol.  50   (cd.  -420),  p.  15 


THE    NEUTRALITY    OATH.  147 

once,  and  to  bind  themselves  by  an  oath  to  abstain  from 
further  participation  in  the  war,  will  be  given  passes  to 
allow  them  to  return  to  their  homes,  and  will  not  be  made 
prisoners  of  war,  nor  will  their  property  be  taken  from 
them."30 

Differed  from  a  Prisoner's  Parole. — This  was  evidently 
something  different  from  the  release  of  prisoners  on  parole. 
It  was  an  inducement  to  lay  down  arms,  which  may  have 
looked  unobjectionable  from  the  British  point  of  view, 
but  which  must  have  looked  to  the  South  African  Govern- 
ments as  a  bribe  offered  for  desertion  from  their  cause. 
The  so-called  Oath  of  Neutrality  must  have  been  regarded 
as  the  consummation  of  the  desertion  rather  than  as  the 
parole  of  a  prisoner  of  war. 

It  is  not  surprising  that  neither  of  the  Republics  recog- 
nized its  validity.  Their  action  in  compelling  the  men  who 
had  taken  the  oath  to  go  again  on  commando  would  there- 
fore appear  to  have  been  justifiable. 

Where  this  oath  was  taken  voluntarily  it  was  binding  on 
the  taker  unless  he  was  released  by  the  violation  of  the 
conditions  of  the  oath  on  the  part  of  the  British  authorities. 
— But  it  was  not  justifiable  for  the  men  who  had  taken  the 
oaths  to  retake  arms  voluntarily,  unless  they  had  been  re- 
leased from  the  obligation  of  their  oaths  by  the  failure  of 
the  British  Government  to  live  up  to  its  part  of  the  con- 
tract. This,  General  De  Wet  claims,  was  the  case.  He 
claims  that  the  British  Government  violated  its  contract 
in  the  first  place  by  requiring  the  inhabitants,  both  those 
who  had  not  taken  the  oath  of  neutrality  and  those  who 
had,  to  furnish  information  with  regard  to  the  presence 
of  Boer  forces  on  or  near  their  land,  and  in  the  second 
place  by  requisitioning  the  property  of  those  who  had  taken 
the  oath.31  Whether  these  things  were  or  were  not  viola- 
tions of  the  contract,  it  is  easy  to  see  how  the  Boers  re- 
garded them  as  such,  and  therefore  felt  justified  in  volun- 
tarily retaking  arms.  On  the  other  hand,  it  is  easy  to  see 
how  the  British  authorities  should  have  felt  they  were  not 
violations  of  the  contract,  and  how  they  accordingly  felt 
justified  in  punishing  the  Boers  who  again  took  up  arms. 

The  injustice  of  punishing  those  who  were  forced  to  vio- 

30  Ibid.,  p.  3. 

si  De  Wet,  Three  Years'  War,  p.  159,  et  seq. 


148  THE  WAR   IN    SOUTH    AFRICA. 

late  their  oath. — If  these  had  been  all  whom  the  British 
authorities  punished,  there  would  be  little  ground  for  harsh 
comment,  but  they  were  not.  A  large  number  of  those 
who  resumed  fighting  were  terrorized  into  doing  so  by  the 
Boer  forces.  The  hardship  of  their  being  punished  on  that 
account  is  evident.  On  this  point,  Sir  A.  Conan  Doyle  says : 
"Their  promise  was  in  a  sense  conditional  upon  effective 
protection  from  our  troops.  We  had  no  right  to  place  a 
man  in  so  terrible  a  position  that  he  had  to  choose  be- 
tween breaking  his  parole  and  death  at  the  hands  of  his 
own  countrymen.  If  we  were  not  sure  that  we  could  pro- 
tect them  we  could  have  retained  them  in  guarded  camps, 
as  w^e  eventually  did.  If  we  chose  to  turn  them  loose  on 
the  wide  veldt,  then  it  was  our  fault  more  than  theirs  that 
they  were  forced  into  the  ranks  of  the  enemy.  To  their 
credit  be  it  said  that  even  under  such  pressure  many  of 
them  w^ere  true  to  their  oaths. 

"But,  if  their  guilt  is  indeed  no  greater  than  our  own, 
then  how  are  we  justified  in  burning  down  their  houses?"32 

The  great  evil  of  the  war. — This  brings  us  to  the 
great  evil  of  the  war — the  burning  of  the  farms. 
From  June,  1900,  to  January,  1901,  634  in  all  are 
reported  to  have  been  destroyed  in  this  way.33  In  many 
cases  the  causes  assigned  for  the  burning  constituted  se- 
rious offences  against  the  laws  of  war,  such  as  irregular 
shooting  and  train  wrecking;  but  the  causes  more  often 
assigned,  such  as  harboring  Boers,  and  laying  waste  country 
used  as  a  base  by  the  enemy,  were  capable  of  the  widest 
extension,  while  the  burning  of  farms  on  account  of  the 
involuntary  breaking  of  the  neutrality  oath,  or  merely  on 
account  of  the  owner  being  "on  commando,"  was,  as  we 
have  seen,  absolutely  unjustifiable.  One  of  the  worst  feat- 
ures of  such  a  practice  is  the  rapidity  with  which  it  develops 
when  once  entered  upon.  It  gives  rise  to  such  exasperation 
that  the  incidents  that  call  for  its  exercise  are  multiplied 
many  fold;  its  exercise  is  multiplied  in  even  greater  pro- 
portion; and  so  the  movement  goes  on,  driving  the  whole 
population  to  desperation,  putting  new  life  into  the  war 
and  making  its  speedy  termination  improbable.  This  is 
precisely  what  happened  in  the  Boer  War.     The  buildings 

32  A.  Conan   Doyle,  The  War  in  South  Africa,  p.  79. 

33  Pari.  Papers,   1901,  Vol.  47    (cd.  -524). 


FARM   BURNINGS.  149 

burnt  in  October,  1900,  reached  the  number  of  189.  In  No- 
vember it  increased  to  226.  This  was  intolerable.  It  aroused 
public  sentiment  everywhere,  and  the  Boers,  strengthened 
by  the  recruits  it  brought,  regained  territory  on  every  hand. 
The  British  authorities  came  to  realize  this  and  on  November 
18,  1900,  Lord  Roberts  issued  the  followiDg  Proclamation: 
"As  there  appears  to  be  some  misunderstanding  with  ref- 
erence to  burning  of  farms  and  breaking  of  dams,  Com- 
mander-in-Chief wishes  the  following  to  be  lines  on  which 
general  officers  commanding  are  to  act : 

The  practice  practically  stopped  by  a  proclamation  of 
Lord  Roberts. — "No  farm  is  to  be  burnt  except  for  act  of 
treachery,  or  when  troops  have  been  fired  on  from  prem- 
ises, or  as  punishment  for  breaking  of  telegraph  or  rail- 
way lines,  or  when  they  have  been  used  as  bases  of  opera- 
tions for  raids,  and  then  only  with  direct  consent  of  gen- 
eral officer  commanding,  which  is  to  be  given  in  writing. 
The  mere  fact  of  a  burgher  being  absent  on  commando  is 
on  no  account  to  be  used  as  reason  for  burning  a  house. 
All  cattle,  wagons,  and  food  stuffs  are  to  be  removed  from 
all  farms ;  if  that  is  found  to  be  impossible,  they  are  to  be 
destroyed,  whether  owner  be  present  or  not."34 

The  effect  of  this  proclamation  was  instantaneous.  From 
226  farms  burnt  in  November,  the  number  fell  in  December 
to  six.  But  the  harm  was  done.  From  this  time  on  the 
war  was  characterized  by  bitterness  seldom  witnessed  in 
modern  warfare. 

The  difficulty  in  maintaining  lines  of  communication. — 
One  of  the  great  difficulties  of  the  war  was  the  maintenance 
of  lines  of  communication.  With  that  end  in  view,  Lord 
Roberts  issued  the  following  proclamation  June  16,  1900: 

"Whereas,  small  parties  of  raiders  have  recently  been 
doing  wanton  damage  to  public  property  in  the  Orange 
River  Colony  and  the  South  African  Republic  by  destroy- 
ing railway  bridges  and  culverts  and  cutting  the  telegraph 
wires,  and  whereas  such  damage  cannot  be  done  without 
the  knowledge  and  connivance  of  the  neighboring  inhab- 
itants and  the  principal  civil  residents  in  the  districts  con- 
cerned ; 

"Now,  therefore,  I,  Frederick  Sleigh,  Baron  Roberts,  etc., 
warn  the  said  inhabitants  and  principal  civil  residents,  that, 

34  Pari.  Papers,  1900,  Vol.  56    (cd.  -426),  p.  23. 


150  THE  WAR  IN  SOUTH  AFRICA. 

whenever  public  property  is  destroyed  or  injured  in  the 
manner  specified  above,  they  will  be  held  responsible  for 
aiding  and  abetting  the  offenders.  The  houses  in  the  vi- 
cinity of  the  place  where  the  damage  is  done  will  be  burnt 
and  the  principal  civil  residents  will  be  made  prisoners  of 
war. '  '35 

In  another  proclamation  three  days  later  was  added  the 
following : 

"1.  The  principal  residents  of  the  towns  and  districts 
will  be  held  jointly  and  severally  responsible  for  the  amount 
of  damage  done  in  their  districts. 

"2.  In  addition  to  the  payment  of  the  damage  above 
mentioned,  a  penalty  depending  upon  the  circumstances 
of  each  case,  but  which  will  in  no  event  be  less  than  the 
sum  of  2s.  6d.  per  morgen  on  the  area  of  each  farm,  will 
be  levied  and  recovered  from  each  burgher  of  the  district 
in  which  the  damage  is  done  in  respect  of  the  land  owned 
or  occupied  by  him  in  such  district.  Furthermore,  all  re- 
ceipts for  goods  requisitioned  in  such  district  on  behalf 
of  the  military  authorities  will  be  cancelled,  and  no  pay- 
ment whatsoever  will  be  made  in  respect  of  the  same. 

"3.  As  a  further  precautionary  measure,  the  director 
of  military  railways  has  been  authorized  to  order  that  one 
or  more  of  the  residents,  who  will  be  selected  by  him  from 
each  district,  shall  from  time  to  time  personally  accompany 
the  trains  while  traveling  through  their  district. 

"4.  The  houses  and  farms  in  the  vicinity  of  the  place 
where  the  damage  is  done  will  be  destroyed,  and  the  resi- 
dents in  the  neighborhood  dealt  with  under  martial  law."36 

In  the  first  place,  it  is  to  be  noticed  that  the  destruction 
of  lines  of  communication  is  here  treated  as  an  offense 
against  the  laws  of  war;  and,  insofar  as  it  is  done  by  non- 
combatants,  this  is  correct;  but,  insofar  as  it  is  a  part  of 
regular  military  operations,  it  is  not.  In  the  earlier  proc- 
lamation, Lord  Roberts  speaks  of  "small  parties  of  raid- 
ers," but  he  does  not  affirm  that  such  parties  did  not  sat- 
isfy the  conditions  of  belligerency,  and  in  many  cases  we 
have  good  evidence  that  they  did.  In  such  cases  the  treat- 
ment of  the  destruction  of  the  railways  as  an  offense  against 
the  laws  of  war  was  not  justifiable. 

33  Ibid.,  p.  10. 
se  Ibid.,  p.  11. 


HOSTAGES  ON   TRAINS.  151 

The  use  of  notables  on  trains  to  protect  communications. 
— The  third  provision  of  the  second  proclamation  intro- 
duced the  practice  of  placing  hostages  on  railway  trains 
for  their  protection.  If  there  had  been  no  Boer  forces  in 
the  field  entitled  to  belligerent  rights,  this  measure  might 
have  been  justified  as  a  preventative  measure;  but,  while 
there  were  such  forces  in  the  field  having  a  perfect  right 
to  tear  up  railroads,  the  measure  was  one  analogous  to 
placing  prisoners  of  war  where  the  enemy  is  liable  to  at- 
tack, so  that,  if  he  does  attack,  his  fellow-countrymen  must 
suffer  first.  The  objections  to  this  practice  as  to  trains 
have  already  been  noted  in  treating  of  the  Franco-German 
War.  Evidently  the  attention  of  the  British  forces  was 
called  to  them,  and  a  little  over  a  month  later  this  section 
of  the  proclamation  wras  repealed.  It  was,  however,  again 
resorted  to  by  Lord  Kitchener  late  in  the  following  year. 

Destruction  of  railroads  punished  by  the  burning  of 
farms  in  the  vicinity. — The  burning  of  farms  for  the  causes 
indicated  in  this  proclamation  was  one  of  the  features  of 
farm  burning  that  the  Boers  most  bitterly  complained  of. 
Collective  responsibility  of  any  kind  for  acts  of  individuals 
over  whom  a  community  has  not  effective  control  is  harsh 
enough,  even  where  the  penalty  is  less  severe  than  burn- 
ing, but  it  was  especially  harsh  in  this  case,  where  the  de- 
struction of  the  railway  lines  was  often  a  perfectly  proper 
act  of  wTar. 

Collective  responsibility. — Where  the  destruction  was  the 
work  of  noncombatants,  however,  it  would  seem  to  have 
been  proper  to  hold  the  communities  to  some  degree  of 
collective  responsibility,  if,  as  Lord  Roberts  claimed  in  his 
proclamation  of  June  16,  it  could  not  have  been  "done 
without  the  knowledge  and  connivance  of  the  neighboring 
inhabitants  and  the  principal  civil  residents  in  the  districts 
concerned."  In  such  a  case  it  did  not  come  within  the 
provisions  of  The  Hague  Regulations  as  to  "individual 
acts  for  which  they  (communities)  could  not  be  regarded 
as  collectively  responsible." 

The  Concentration  Camps. — This  brings  us  to  the  consid- 
eration of  the  question  of  the  Concentration  Camps,  the 
number  of  whose  inmates  increased  from  20,000  at  the  end 
of  the  year  1900  to  more  than  100,000  at  the  end  of  1901.37 

37  Doyle,  The  War  in  South  Africa,  p.  82. 


152  THE  WAR  IN  SOUTH  AFRICA. 

The  British  position  with  regard  to  them  is  best  given  in 
the  language  of  Lord  Kitchener's  letter  to  Mr.  Brodrick, 
of  December  6,  1901.     It  was,  in  part,  as  follows : 

Lord  Kitchener's  justification  of  them. — "Numerous  com- 
plaints were  made  to  me  in  the  early  part  of  this  year  by 
surrendered  burghers,  who  stated  that  after  they  had  laid 
down  their  arms,  their  families  were  ill-treated  and  their 
stock  and  property  confiscated  by  order  of  the  Command- 
ants-General of  the  Transvaal  and  Orange  Free  State.  These 
acts  appear  to  have  been  taken  in  consequence  of  the  cir- 
cular dated  Roos,  Senekal,  6th  November,  1900,  in  which 
the  Commandant-General  says:  "Do  everything  in  your 
power  to  prevent  the  burghers  laying  down  their  arms.  I 
will  be  compelled,  if  they  do  not  listen  to  this,  to  confiscate 
everything  movable  or  immovable,  and  also  to  burn  their 
houses.'     *     *     * 

"In  addition  to  the  families  of  surrendered  burghers  who 
either  came  in  of  their  own  accord,  or  were  brought  in 
solely  to  save  them  from  the  reprisals  of  the  enemy,  there 
are  three  other  classes  represented  in  our  refugee  camps : 

"(a)  Families  who  were  reported  to  be  engaged  in  a 
regular  system  of  passing  information  to  the  enemy. 

"(b)  Families  from  farms  which  were  constantly  used 
by  the  enemy  as  places  from  which  to  snipe  at  our  troops. 

"(c)  Families  from  farms  which  were  used  as  com- 
missariat depots  by  the  enemy.     *     *     * 

"The  majority  of  the  women  and  children  in  the  refugee 
camps  are  those  of  surrendered  burghers;  but  neither  they 
nor  the  wives  of  prisoners  of  war,  nor  of  men  on  commando, 
make  any  serious  complaint,  although  they  are  constantly 
being  invited  by  commissions,  inspectors,  etc.,  to  say  some- 
thing, however  little  it  may  be,  against  the  arrangements 
made  for  their  comfort,  recreation  and  instruction."38 

Where  a  whole  population  engages  in  warfare  the  dis- 
tinction between  combatant  and  noncombatant  vanishes. — 
To  the  majority  in  them,  as  Lord  Kitchener  states,  the 
camps  established  by  the  British  authorities  were  truly 
camps  of  refuge.  To  a  minority,  however,  there  can  be 
no  question  that  they  were  camps  of  concentration.  But 
it  has  always  been  an  accepted  principle  of  war  that,  if 
those  who  are  ordinarily  noncombatants  engage  in  hostili- 

38  Blue  Book,  1902,  Vol.  68   (cd.  902),  p.  119. 


THE  CONCENTRATION  CAMPS.  153 

ties,  they  cannot  claim  the  privileges  of  noncombatants. 
The  Boers  felt  they  were  fighting  for  the  sacred  cause  of 
liberty.  If  they  were  willing  to  suffer  martyrdom  in  that 
cause,  all  honor  was  due  them,  but  when  in  order  to  con- 
tinue the  struggle,  they  found  it  necessary  to  resort  to 
guerilla  fighting,  thus  involving  the  whole  people  in  the 
war,  they  had  no  right  to  complain  when  the  British  au- 
thorities made  prisoners  of  those  who  had  ceased  to  be  non- 
combatants. 

The  sufferings  of  those  who  were  not  brought  into  the  ^/ 
camps  worse  than  the  suffering  of  those  who  were  brought 
in. — Indeed,  General  Botha,  in  a  letter  to  Mr.  Chamberlain 
of  November  12,  1902,  lays  special  stress  on  the  suffering 
of  those  who  were  not  brought  into  the  concentration 
camps.  He  said:  "My  remark  at  Paris  about  the  suffer- 
ings of  the  women  and  children,  which  you  quote,  has  ref- 
erence more  particularly  to  those  remaining  outside  the 
camps,  who  had  their  dwellings  with  the  furniture,  food, 
and  all  that  they  contained,  burnt  or  destroyed  by  British 
troops;  their  herds  killed  or  removed,  and  they  themselves 
left  destitute  on  the  veldt.  These  were  certainly  suffer- 
ings."39 It  was  certainly  a  mercy  to  bring  women  and 
children  such  as  these,  who  had  had  their  provisions  de- 
stroyed as  a  means  of  war,  within  the  concentration  camps. 

The  conduct  of  the  Concentration  Camps. — The  conduct 
of  these  camps  has,  however,  been  severely  criticised.  But, 
after  careful  investigation,  it  may  be  stated  that  the  fol- 
lowing extract  from  the  letter  of  Mr.  Chamberlain  to  Gen- 
eral Botha,  to  which  the  letter  from  which  the  last  extract 
was  taken  was  a  reply,  sums  up  accurately  the  true  facts 
with  regard  to  them:  "No  one  deplores  more  than  the 
British  Government  the  high  mortality  in  the  camps  dur- 
ing the  epidemic  of  measles  and  pneumonia,  but  nothing 
was  spared  that  money  or  science  could  afford  to  reduce  it. 
and  for  the  last  six  months  the  average  total  death  rates 
in  the  camps  have  been  about  21  per  1,000  per  annum."40 

The  threat  of  banishment  from  South  Africa. — One  of 
the  last  important  measures  taken  by  the  British  authori- 
ties was  embodied  in  the  proclamation  dated  August  6, 
1901,  which,  after  stating  that  regular  warfare  had  ceased, 

39  Pari.  Papers,  1902,  Vol.  69    (cd.  1329),  p.  7. 
■to  Ibid.,  p.  4. 


154  THE  AVAR  IN  SOUTH  AFRICA. 

declared  that  all  Boers  not  surrendering  before  the  15th 
of  next  September  should  be  permanently  banished  from 
South  Africa,  and  that  the  cost  of  the  maintenance  of  the 
families  of  all  burghers  fighting  thereafter  should  be  re- 
coverable from  them  and  should  be  a  charge  on  the  movable 
and  immovable  property  in  the  colonies.41 

A  most  unfortunate  one. — This  proclamation  is  very  much 
to  be  regretted.  The  attitude  taken  toward  the  Boers  for 
their  continuing  the  struggle,  and  the  refusal  to  recognize 
them  as  any  longer  entitled  to  belligerent  rights,  though 
in  many  ways  the  Boers  were  in  a  better  position  than 
they  had  been  a  year  earlier,  are  explained  but  not  justified 
by  the  strain  which  the  continuance  of  the  war  had  caused 
the  British  authorities.  Especially  was  the  threat  of  ban- 
ishment for  life  reprehensible.  As  a  matter  of  fact  it  was 
never  carried  out.  Its  fate  was  settled  by  the  following 
telegram  of  May  27,  1902,  from  Lord  Mil'ner  to  Mr.  Cham- 
berlain, which  reflects  the  unfortunate  attitude  which  the 
British  authorities  finally  assumed. 

Its  approval  by  Lords  Milner  and  Kitchener. — ' '  Referring 
to  your  telegram  of  26th  May,  no  promises  have  been  made 
or  asked  for.  The  Boers  are  no  doubt  aware  that  legisla- 
tion is  required  to  give  effect  to  banishment,  and  feel  that 
we  would  not  introduce  such  legislation  if  Article  3  of  pro- 
posed agreement  is  accepted.  This  is  obvious,  and  it  fol- 
lows that  if  surrender  comes  off  banishment  will  be  pas- 
sively dropped.  I  was  in  favor  of  banishment  proclama- 
tion and  was  prepared  to  go  even  further,  as  I  thought, 
and  I  still  think,  that  resistance  of  Boers  had  ceased  to  be 
legitimate  at  that  stage,  and  that  it  was  our  duty  to  im- 
pose special  penalties  upon  those  responsible  for  adoption 
of  guerilla  methods  by  which  the  country  was  being  ruined 
and  by  which  alone  the  struggle  could  be  kept  up. at  all. 

"So  far  from  regretting  the  proclamation,  I  believe  it 
has  had  great  effect  in  increasing  the  number  of  surrenders, 
and  in  inducing  the  Boers  still  in  the  field  to  desist  from 
further  fighting.  That  has  certainly  been  Kitchener's  opin- 
ion, as  he  has  always  pressed  and  given  the  greatest  pub- 
licity to  the  lists  of  banished  leaders,  but  it  would  be  a 
mistake  if  the  Boers  now  give  in  in  a  body  and  live  as 
British  subjects  to  continue  a  proscription  which  would  only 

4i  Pari.  Papers,  1901,  Vol.  47    (cd.  732),  p.  6. 


THE  BOXER  UPRISING.  155 

keep  up  bitter  feeling  and  tend  to  prevent  the  country  from 
settling  down. 

"Kitchener  agrees  entirely."42 

Boxer  uprising  in  China. — While  the  South  African  war 
was  still  in  its  earliest  stages,  there  broke  out  in  China 
the  Boxer  uprising,  followed  by  the  shooting  of  the  German 
Ambassador,  and  the  siege  of  the  legations.  In  bidding 
farewell  to  the  troops  which  he  sent  to  avenge  the  mur- 
der of  his  representative,  Emperor  William  is  reported  to 
have  bade  them  give  no  quarter  to  their  enemies,  and  make 
their  name  a  by-word  for  centuries  to  come.43  As  this  was 
a  measure  of  reprisal  and  no  very  definite  limitations  have 
yet  been  developed  with  regard  to  reprisals,  this  cannot  be 
said  to  have  been  a  violation  of  the  laws  of  war;  but  it 
takes  us  back  to  the  stern  measures  of  Cromwell,  which 
many  had  supposed  were  relegated  to  the  memories  of  a 
less  humane  age.  Other  measures  taken  during  the  cam- 
paign in  China  can  likewise  be  justified  only  as  part  of  the 
scheme  of  reprisals,  and  cannot  serve  as  precedents  for  the 
conduct  of  ordinary  warfare. 

The  war  in  the  Philippines. — The  principal  feature  of 
the  war  in  the  Philippines  was  the  establishment  of  zones 
of  refuge,  outside  of  which  supplies  of  every  kind  were 
either  removed  or  destroyed.  The  condition  of  affairs  much 
resembled  that  in  South  Africa,  although  in  many  respects 
they  were  much  wTorse.  An  irregular  guerilla  warfare  was 
carried  on,  friendly  populations  were  terrorized,  and  out- 
rages of  every  kind  were  frequent.  The  only  apparent 
remedy  for  this  state  of  things  wras  to  draw  a  sharp  line 
between  territory  which  could  be  effectively  policed  and 
that  which  could  not  be,  and  then  to  destroy  the  provisions 
in  that  which  could  not  and  thus  reach  the  enemy  through 
their  stomachs.  Accordingly,  the  inhabitants  were  invited 
within  the  protected  area,  and  cared  for  there  while  the 
territory  outside  was  ravaged.  There  were  no  concentra- 
tion camps  in  the  sense  that  inhabitants  were  forced  to 
come  into  them.  The  results  were  almost  instantaneous. 
In  a  few  months  order  was  restored  and  the  inhabitants 
wTere  able  to  return  to  their  homes.44 

42  Pari.  Papers,  1902,  Vol.  69   (cd.  1096),  p.  9. 

43  Annual  Register,  1900,  p.  300. 

44  House  Doc.  No.  2,  57th  Cong.,  2d  Session,  pp.  231-234. 


156  THE  RUSSO-JAPANESE   WAR. 


CHAPTER  XIV. 

THE   RUSSO-JAPANESE   WAR.1 

Outbreak  of  hostilities. — The  world  was  watching  with 
ever-increasing  interest  the  apparently  inevitable  approach 
of  the  conflict  between  Russia  and  Japan  over  Manchuria 
and  Korea  when  it  was  electrified  by  the  news  that  about 
midnight  of  the  8th  of  February,  1904,  the  Japanese  had 
made  a  torpedo  boat  attack  on  the  Russian  fleet  in  the  outer 
harbor  of  Port  Arthur  with  a  probable  loss  to  the  Russians 
of  a  first-class  protected  cruiser  and  the  two  most  powerful 
battleships  of  the  fleet.  But  no  formal  declaration  of  war 
had  yet  been  made  by  Japan,  nor  was  any  made  until  the 
tenth  and  the  admiration  for  the  brilliancy  and  dash  of  the 
Japanese  was  even  exceeded  by  the  indignant  clamor  of 
Russian  partisans  who  claimed  that  the  attack  had  been 
a  violation  of  international  law  in  that  it  had  been  treach- 
erous and  that  it  had  been  made  prior  to  the  formal  dec- 
laration. 

A  declaration  not  a  prerequisite. — There  was  nothing  in 
the  second  charge  as  the  law  with  regard  to  formal  declara- 
tions at  the  beginning  of  the  century2  had  not  changed, 
and  this  was  conceded  by  F.  de  Martens,  the  ablest  of 
Japan's  critics.3  France  had  been  especially  punctilious  in 
declaring  war  in  1870,  and  it  was  urged  by  some  writers, 
principally  French,  that  the  practice  of  the  preceding  fifty 
years  had  made  a  declaration  a  prerequisite  to  hostilities, 
but  this  is  disproved  by  the  careful  study  of  M.  Dupuis 
of  the  wars  of  that  period.4  In  view  of  the  facts  he  brings 
out,  the  contention  that  modern  practice  required  a  prior 
declaration  must  have  been  based  on  a  conception  of  dec- 
laration other  than  that  generally  accepted.     The  Institute 

i  It  is  a  matter  of  regret  that  notice  of  the  publication  of  La  Guerre 
Russo-Japonaise  au  Point  de  Vue  Continental  et  le  Droit  International, 
by  Nagao  Ariga,  reached  the  writer  too  late  to  allow  him  to  make  use 
oif  it. 

2  See  supra,  p.  41. 

s  11  R.  G.  D.  I.  P.,  148. 

*  13  R.  G.  D.  I.  P.,  725. 


OPENING   OF  HOSTILITIES.  157 

of  International  Law  subsequently  expressed  the  opinion 
that  war  ought  not  to  be  commenced  without  a  declaration 
or  an  ultimatum,  with  conditional  declaration,  and  the 
Second  Peace  Conference  embodied  that  opinion  in  a  Con- 
vention,5 but  neither  the  one  nor  the  other  was  acting  as 
an  exponent  of  the  positive  law. 

But  treachery  unlawful. — However,  even  such  writers  as 
Bynkershoek  and  Ward,  who  had  done  more  than  any  other 
two  men  to  incorporate  into  legal  literature  the  doctrine 
that  a  previous  declaration  was  unnecessary,  believed  that 
before  recourse  could  be  had  to  arms  demand  of  satisfaction 
for  the  injury  complained  of  was  necessary  and  a  denial  or 
delay  thereof.  It  is  requisite,  therefore,  to  determine 
whether  Japan  lived  up  to  these  conditions. 

Diplomatic  events  leading  up  to  the  war. — Russia  had 
deprived  Japan  of  what  the  latter  felt  to  be  the  fruits  of 
her  war  with  China,  and  instead  of  evacuating  Manchuria 
seemed  to  be  strengthening  her  hold  there  and  to  be  at- 
tempting to  get  a  foothold  in  Korea.  This  Japan  felt  to  be 
in  violation  of  what  she  considered  her  special  rights  in 
the  former  and  her  preponderating  rights  in  the  latter,  but 
apparently  she  hoped  to  protect  her  interests  without  re- 
sorting to  arms  and  so  commenced  negotiations  by  the  de- 
livery of  a  note  August  12,  1903.  To  this  note  Russia  re- 
plied October  3.  It  is  sufficient  to  say  that  Russia  wished 
Japan  to  recognize  Manchuria  as  outside  her  sphere  of  in- 
fluence and  to  engage  not  to  take  advantage  of  her  priv- 
ileged position  in  Korea  to  gain  a  strategical  foothold  there. 
A  second  note  of  October  30  was  answered  on  December  11 
with  no  indication  of  any  concessions  on  Russia's  part,  and 
a  third  note  verbale  of  December  23,  on  January  6.  A 
last  effort  was  made  on  January  13,  1904,  when  Mr.  Kurino, 
the  Japanese  representative  at  St.  Petersburg,  was  instruct- 
ed to  deliver  a  fourth  note  to  Count  Lamsdorff,  with  a  re- 
quest for  an  early  reply.  From  January  23  on,  Mr.  Kurino 
made  at  least  four  attempts  to  get  a  reply  or  at  least  an 
assurance  as  to  the  date  by  which  a  reply  might  be  ex- 
pected, but,  although  the  dates  given  out  by  the  Japanese 
and  Russian  authorities  respectively  are  somewhat  conflict- 
ing, it  seems  clear  that  towards  the  end  of  January  the 
Japanese  came  to  understand  that  they  might  hope  for  a 

s  See  infra,  p.  198. 


158  THE   RUSSO-JAPANESE   WAR. 

reply  by  February  2,6  but  on  pressing  for  a  more  definite 
assurance,  were  told  that  the  reply  would  be  sent  as  soon 
as  possible,  but  that  no  exact  date  could  be  given.7  This 
was  the  diplomatic  situation  on  the  first  of  February.  There 
was  certainly  strong  ground  for  contention  on  the  part  of 
the  Japanese  that  the  satisfaction  of  their  claims  had  been 
delayed,  but  whether  these  facts  in  themselves  would  have 
justified  the  Japanese  in  commencing  hostilities  it  is  un- 
necessary to  decide  as  the  importance  of  the  diplomatic 
events  was  soon  overshadowed  by  the  steps  taken  by  the 
Russian  military  authorities  on  land  and  sea.- 

Military  and  naval  events. — On  the  21st  of  January  two 
battalions  of  infantry  and  some  of  the  artillery  were  sent 
from  Port  Arthur  and  Talien  to  the  northern  frontier  of 
Korea;  on  the  28th,  Viceroy  Alexieff  ordered  the  Russian 
troops  next  the  Yalu  to  be  placed  on  a  war  footing  and 
on  February  1,  the  Governor  of  Vlaclivostock  asked  the 
Japanese  Commercial  Agent  at  that  port  to  prepare  to  with- 
draw the  Japanese  residents  to  Habarofsk,  as  he  was  ready 
at  any  time  to  proclaim  martial  law  under  the  instructions 
of  his  government.8  About  the  same  time  the  Russian  Med- 
iterranean fleet  under  the  command  of  Admiral  "Wirenius 
left  Suez  for  the  far  east.9  But  the  deciding  factor  seems 
to  have  been  the  sailing  of  the  Russian  fleet  from  Port 
Arthur.  For  three  days  from  the  31st  of  January  to  the 
3d  of  February,  the  Russian  ships  were  being  towed  from 
the  inner  to  the  outer  harbor  of  Port  Arthur,  and  on  the 
latter  date,  with  the  possible  exception  of  one  vessel,  all 
the  best  of  the  Russian  ships  put  to  sea.10 

War.  Port  Arthur. — On  the  same  day  the  members  of 
the  Japanese  Cabinet  and  of  the  Privy  Council  held  a  con- 
ference. No  reply  had  as  yet  been  received  from  St.  Peters- 
burg, although  there  had  been  reason  to  expect  one  by 
the  2d  and  the  sailing  of  the  fleet  from  Port  Arthur  under 
the  circumstances  could  only  be  looked  upon  as  a  hostile 
measure.  On  the  following  day  the  Russian  fleet,  twenty- 
six  ships   in  all,   was   seen  off  the  Shantung   promontory 

6Kurino  to  Komura,  Jan.  28,  1904,  42  Memorial  Diplomatique,  306. 
7  Kurino  to  Komura,  Feb.  1,  1904,  Ibid. 

s  Reply  of  the  Japanese  Government,  Asakawa,  The  Russo-Japanese 
Conflict,  p.  353. 

9  Lawrence,  p.  22. 

io  Times  History,  p.  42. 


OPENING  OF  HOSTILITIES.  159 

between  Port  Arthur  and  the  Japanese  coast.11  This  was 
the  4th  of  February.  The  same  day  another  conference 
was  held  between  the  members  of  the  Cabinet  and  Privy 
Council,  this  time  before  the  throne,  and  the  result  was 
war.  On  the  following  afternoon,  the  5th,  at  2  p.  m.  two 
notes  were  telegraphed  to  Mr.  Kurino,  the  one  breaking 
off  diplomatic  relations,  the  other  terminating  the  negotia- 
tions and  declaring  that  "the  Imperial  Government  re- 
serve to  themselves  the  right  to  take  such  independent  ac- 
tion as  they  may  deem  best  to  consolidate  and  defend  their 
menaced  position,  as  well  as  to  protect  the  acquired  rights 
and  legitimate  interests  of  the  Empire."12  Shortly  after- 
wards orders  were  sent  to  Vice-Admiral  Togo  at  Sasebo 
to  go  in  search  of  the  Russian  fleet,  and  he  sailed  from 
that  port  on  the  following  morning,  the  6th,  at  7  o'clock.13 
Two  hours  later  he  seized  the  Ekaterinoslau,  a  ship  belong- 
ing to  the  Volunteer  Fleet  Company,  of  Russia.14  This  was 
the  first  hostile  act  of  war.  He  then  proceeded  to  Port 
Arthur  and  about  midnight  of  the  8th  and  9th  surprised 
the  Russian  fleet  in  the  outer  harbor.  The  Japanese  torpedo 
boats  succeeded  in  holing  the  two  most  powerful  battleships 
of  the  Russian  fleet,  besides  a  first-class  protected  cruiser, 
thus  inflicting  incalculable  damage  to  the  fleet.15 

Attack  at  Chemulpo. — Earlier  on  the  same  day  a  de- 
tachment of  the  Japanese  navy  under  Admiral  Uriu,  ac- 
companied by  transports,  had  arrived  off  Chemulpo,  and,  it 
is  reported,  had  been  fired  on  by  the  old  unarmoured  gun- 
boat Korietz,  which  had  then  run  for  the  harbor  to  join 
her  consort,  the  Variag,  a  first-class  protected  cruiser.16 
Early  the  following  morning  the  neutral  warships  in  the 
harbor  received  notice  from  the  Japanese  commander  that 
unless  the  senior  Russian  naval  officer  complied  with  his 
demand  to  leave  port  before  12  o'clock  to  keep  away  from 
the  scene  of  the  action,  which  would  inevitably  follow 
within  the  port,  but  which  he  would  not  commence  before 
4   o'clock.     The   commanders   of  the  French,   British   and 

ii  The  war  in  the  Far  East — By  the  Military  Correspondent  of  the 
Times,  p.  42. 

12  Asakawa,  p.  343. 

isRey,  XIV  R.  G.  D.  I  P.,  314;  Takahashi,  591. 

i*  Takahashi,  p.   583. 

is  Times  History,  p.  49. 

16  Ibid.,  p.  52. 


160  THE  RUSSO-JAPANESE   WAR. 

Italian  warships  protested  against  the  violation  of  Korean 
neutrality,  but  warned  the  Russian  commander  that  if  he 
should  not  comply  with  the  Japanese  demand,  they  would 
be  compelled  to  leave.17  Accordingly  the  Russian  ships 
sailed  out  of  port  about  noon,  but  after  an  engagement 
of  thirty-five  minutes  at  from  5,250  to  9,800  yards  returned 
to  the  harbor.18  It  was  decided  by  the  Russian  commander 
that  it  was  useless  to  renew  the  engagement,  and  so  the 
crews  of  the  vessels,  including  the  wounded,  were  removed 
to  the  British,  French  and  Italian  warships,  the  Korietz 
was  blown  up  and  the  Variag  set  on  fire  and  sunk.19 
Formal  Declaration  of  War  was  made  on  the  following 
day,  the  10th.  Besides  the  acts  of  hostility  prior  to  the 
Declaration  mentioned  above,  there  were  four  other  mer- 
chant ships  seized  in  addition  to  the  one,  the  seizure  of 
which  had  marked  the  opening  of  hostilities.20 

Comment. — Extended  comment  on  the  above  facts  is  not 
necessary.  Whether  the  delay  in  the  reply  to  the  last 
Japanese  note  would  in  itself  have  justified  the  commence- 
ment of  hostilities  or  not  it  is  clear  that  when  considered 
in  connection  with  the  military  measures  taken  by  the 
Russian  authorities,  and  especially  the  sailing  of  the  Rus- 
sian fleet,  it  not  only  justified  them,  but  in  the  case  of  a 
high-spirited  and  powerful  nation  as  Japan  proved  her- 
self to  be,  rendered  any  other  course  almost  out  of  the 
question.  It  was  not  to  be  expected  that  Japan  would 
wait  for  a  reply  to  her  note  until  her  shipping  had  been 
seized  or  some  strategical  advantage  gained.  Russia  made 
a  hostile  demonstration,  and  she  had  nothing  to  complain 
of  when  Japan  took  it  at  its  face  value. 

Charges  made  by  the  Russian  Government. — It  were  un- 
necessary to  continue  the  subject  further  if  it  were  not  for 
the  direct  charges  of  bad  faith  made  by  the  Russian  Gov- 
ernment, the  reply  by  the  Japanese  Government  and  the 
rejoinder.  These  constitute  the  only  serious  indictment 
of  the  Japanese,  and  if  substantiated  would  have  reflected 
materially  on  the  Japanese  irrespective  of  the  question  of 
the    commencement    of    hostilities    prior   to    a    declaration. 

it  For.  Rel.    (1904),  pp.  781,  783. 

is  Times  History,  p.  52. 

is  For.  Rel.  (1904),  p.  781. 

20  Rey,  14  R.  G.  D.  I.  P.,  340;  Takahashi,  p.  761. 


OPENING  OF   HOSTILITIES.  161 

To  understand  them,  it  will  be  necessary  to  take  up  the 
thread  of  the  negotiations  where  we  dropped  them,  with 
the  refusal  of  the  Russian  authorities  to  fix  the  date  for 
the  reply  to  the  Japanese  note. 

The  breaking  off  of  diplomatic  relations.— About  8 
o'clock  on  the  evening  of  the  4th  of  February,  Mr.  Kurino 
Was  requested  to  see  Count  Lamsdorff,  and  was  told  that 
the  reply  to  the  Japanese  note  had  just  been  sent  to 
Viceroy  Alexieff  to  be  transmitted  by  him  to  Baron  Rosen  at 
Tokio,  after  making  such  local  changes  as  he  felt  to  be 
desirable.  To  save  time  it  had  also  been  sent  direct  to 
Baron  Rosen.  The  general  nature  of  the  reply  was  not 
indicated,  but  from  the  expressions  Count  Lamsdorff  gave 
of  his  personal  opirion  it  does  not  seem  likely  that  it  dif- 
fered vitally  from  ihe  previous  replies.21  At  5:05  o'clock 
the  following  morning  Mr.  Kurino  telegraphed  the  sub- 
stance of  his  interview  to  Baron  Komura  and  the  telegram 
reached  Tokio  at  5:15  that  afternoon.22  As  we  have  al- 
ready seen,  three  hours  earlier  notes  had  been  telegraphed 
to  Mr.  Kurino  breaking  off  diplomatic  relations  and  re- 
serving to  the  Japanese  "the  right  to  take  such  indepen- 
dent action  as  they  may  deem  best  to  consolidate  and  de- 
fend their  menaced  position,  as  well  as  to  protect  the  ac- 
quired rights  and  legitimate  interests  of  the  Empire." 
Mr.  Kurino  communicated  them  to  Count  Lamsdorff  at 
4  o'clock  on  the  afternoon  of  the  6th. 

Japan  did  not  consider  the  war  to  have  commenced  with 
the  breaking  of  diplomatic  relations. — The  above  reserva- 
tion has  a  special  importance  from  the  fact  that  when 
the  claim  was  made  that  Japan  had  violated  international 
law  by  commencing  hostilities  prior  to  a  declaration,  it 
was  used  as  an  argument  ad  hominem  to  confound  these 
critics  as  amounting  in  itself  to  a  declaration.  And  this 
has  even  been  urged  in  support  of  the  contention  that 
the  practice  of  the  last  fifty  years  has  made  a  prior  dec- 
laration obligatory.  But  whatever  strength  there  may  be 
in  such  an  argument,  it  seems  clear  that  it  was  but  an 
after  thought  on  the  part  of  the  Japanese  Government  and 
that  she  justified  her  conduct  mainly  on  the  grounds  al- 
ready given.     The  seizure  of  at  least  two  merchant  ships 

21  42  Memorial  Diplomatique,  306. 

22  Ibid. 

11 


1G2  THE   RUSSO-JAPANESE    WAR. 

had  occurred  prior  to  the  handing  of  the  note  to  Count 
Lamsdorff  and  the  Higher  Prize  Court  in  the  case  of  the 
Ekatineroslau  held  that  the  war  had  commenced  when  the 
intention  to  make  war  was  carried  into  action,  that  is,  with 
the  sailing  of  Admiral  Togo's  fleet.-3 

The  Japanese  note,  however,  was  delivered  more  than 
two  days  prior  to  the  attack  at  Port  Arthur. — This  note 
was,  however,  a  complete  answer  to  the  Russian  charge 
that  "without  previously  notifying  us  that  the  rupture 
of  such  relations  implied  the  beginning  of  warlike  action, 
the  Japanese  Government  ordered  its  torpedo  boats  to 
make  a  sudden  attack  on  our  squadron  in  the  outer  road- 
stead of  the  fortress  of  Port  Arthur,"24  and  the  Japanese 
Government  contented  itself  with  replying  that  the  in- 
dependent action  she  had  reserved  to  herself  in  breaking 
off  diplomatic  relations  implied  "all,  including,  as  a  mat- 
ter of  course,  the  opening  of  hostile  acts.  Even  if  Russia 
were  unable  to  understand  it,  Japan  had  no  reason  to 
hold  herself  responsible  for  the  misunderstandings  of  Rus- 
sia."25 As  the  note  was  delivered  to  Count  Lamsdorff 
during  the  afternoon  of  the  6th  and  the  attack  at  Port 
Arthur  did  not  occur  till  the  midnight  of  the  8th,  there 
was  an  interval  of  more  than  forty-eight  hours,  even  sub- 
tracting the  difference  in  time  of  seven  hours,  between 
the  warning  and  the  attack.  Even  the  convention  drawn 
up  at  The  Hague  Conference  requires  no  such  delay.  That 
Russia  did  not  consider  the  note  a  warning  seems  ex- 
plicable only  on  the  ground  that  the  strength  and  spirit 
of  Japan  were  greatly  underrated.  This  brings  us  to  the 
charges  of  treacherous  interference  with  the  telegraph 
service. 

Charges  of  treacherous  interference  with  telegraph  serv- 
ice.— In  the  circular  of  February  22,  addressed  by  Count 
Lamsdorff  to  Russia's  representatives  abroad,  he  charges 
that  the  Japanese  Government  "with  a  division  of  its  fleet 
made  a  sudden  attack  on  February  8,  that  is,  three  days 
prior  to  the  declaration  of  war,  on  two  Russian  warships 
in  the  neutral  port  of  Chemulpo.  The  commanders  of  these 
ships  had  not  been  notified  of  the  severance  of  diplomatic 

23Takahashi,  p.  591. 

24  Asakawa,  p.  345. 

25  Ibid.,  p.  354. 


OPENING  OF  HOSTILITIES.  163 

relations,  as  the  Japanese  maliciously  stopped  the  delivery 
of  Russian  telegrams  by  the  Danish  cable  and  destroyed 
the  telegraphic  communication  of  the  Korean  Govern- 
ment."20 

On  March  9  the  Japanese  Government  made  the  following 
reply:  "The  Imperial  Government  declare  that  the  Rus- 
sian allegation  that  they  stopped  the  delivery  of  Russian 
telegrams  by  the  Danish  cable  and  destroyed  the  Korean 
Government's  telegraphic  communication  is  wholly  untrue. 
No  such  acts  were  done  by  the  Imperial  Government."27 

Russia  rejoined  on  the  12th  as  follows  :  "Japan's  denial 
of  malicious  interference  with  the  transmission  of  Russian 
telegrams  over  the  Danish  cable  cannot  be  sustained.  A 
telegram  to  Baron  Rosen  (then  Russian  Minister  to  Japan), 
at  Tokio,  sent  from  St.  Petersburg,  February  4,  was  not 
delivered  till  the  morning  of  February  7.  That  delay  did 
not  occur  on  the  Siberian  line,  as  was  shown  by  the  fact 
that  a  reply  to  a  telegram  from  Viceroy  Alexieff,  sent  at 
the  same  time,  was  received  the  same  day.  Therefore  it 
is  conclusive  that  the  Rosen  telegram  was  held  by  the 
Japanese  and  not  delivered  for  two  days.  Communication 
with  M.  Pavloff  (then  Russian  Minister  to  Korea)  by  the 
Korean  telegraph  ceased  in  the  middle  of  January.  As  the 
Koreans  were  enjoying  friendly  relations  with  Russia,  there 
is  good  ground  for  believing  that  the  interruption  was 
due  to  the  Japanese.  Thereafter  M.  Pavloff  used  a  mail 
steamer  or  a  special  warship  to  communicate  with  Port 
Arthur.  The  Minister  of  Russia  at  Seoul,  February  8,  there- 
fore, knew  nothing  of  the  diplomatic  rupture."28 

The  communication  by  the  Korean  cable  had  ceased  three 
weeks  before  hostilities  commenced. — With  regard  to  the 
interference  with  the  telegraphic  communications  of  the 
Korean  Government  we  have  the  positive  denial  of  the 
Japanese  Government  against  the  "good  ground  for  be- 
lieving" of  the  Russian.  But  if  the  charge  had  been  at 
all  substantiated  it  would  not  have  involved  Japan  in  a 
treacherous  opening  of  hostilities  as  communication  by 
telegraph  had  ceased  three  weeks  before  they  commenced. 

26  Asakawa,  p.  356. 

27  Asakawa,  p.  358 ;  Takahashi  gives  the  date  of  this  reply  as  March 
2,  p.   12. 

28  Asakawa,  p.  361. 


164  THE  RUSSO-JAPANESE   WAR. 

As  to  the  charge  that  the  attack  was  made  in  a  neutral 
port,  that  in  itself  could  not  have  surprised  Russia,  as  the 
use  of  Korea  for  strategic  purposes  was  one  of  the  very 
things  that  Japan  was  insisting  upon  in  the  negotiations 
that  led  up  to  the  war.  It  was  one  of  the  objects  of  the 
war,  and  like  most  causes  of  wars  and  assumptions  of 
power  over  weaker  peoples,  must  be  judged  of  by  other 
standards  than  those  of  international  law. 

The  nondelivery  of  the  Rosen  telegram  and  the  charge 
in  the  purported  extracts  from  a  Red  Book. — The  nonde- 
livery of  the  Rosen  telegram,  therefore,  remains  the  only 
basis  for  the  contention  that  the  Japanese  Government 
was  guilty  of  malicious  interference  with  the  telegraph 
service  at  the  opening  of  hostilities,  but  from  the  fact  that 
this  telegram  was  sent  two  days  before  the  breach  of  dip- 
lomatic relations  it  is  clear  that  it  gives  no  support  to  the 
charge  made  in  Count  Lamsdorff 's  circular  of  February  22, 
that  it  was  in  part  responsible  for  the  fact  that  the  com- 
manders of  the  ships  in  Chemulpo  harbor  were  not  notified 
of  the  breach  itself.  No  further  attention  to  the  nonde- 
livery of  this  telegram  would  be  necessary  if  it  were  not 
that  it  has  an  apparent  connection  with  the  charge  made 
in  what  purported  to  be  extracts  from  a  Russian  Red  Book, 
that  the  Japanese  Government  had  held  up  the  reply  to 
their  last  note  until  after  they  had  broken  off  diplomatic 
relations.29  These  extracts  were  denied  all  authority  by 
the  Russian  Government  and  the  Red  Book,  if  ever  issued, 
suppressed.30  But  as  this  charge  is  the  only  thing  that 
gives  any  importance  to  the  nondelivery  of  the  Rosen  tele- 
gram, and  as  it  throws  light  on  the  conflicting  statements 
as  to  the  date  of  the  reply  of  the  Russian  authorities  to 
the  last  Japanese  note,  it  deserves  passing  notice. 

Versions  of  the  same  story. — That  the  nondelivery  of  the 
Rosen  telegram  and  the  charge  in  the  purported  extracts 
are  versions  of  the  same  story  can  hardly  be  questioned. 
They  agree  in  their  main  points,  and  there  would  be  little 
or  no  chance  for  difference  of  opinion  were  it  not  that  it 
is  not  stated  in  the  rejoinder  of  March  12  that  the  delayed 
telegram  was  the  reply  to  the  Japanese  note  and  that  the 
date   of  the  telegram   is    given   as   the   4th   of  February, 

29  43  Memorial  Diplomatique,  396. 

30  Eey,  13  B.  G.  D.  I.  P.,  336. 


OPENING  OF  HOSTILITIES.  165 

whereas  in  the  official  Russian  statement  of  February  20 
the  date  of  the  reply  is  given  as  the  3d.31  Very  little  im- 
portance, however,  is  to  be  attached  to  this  discrepancy 
in  dates,  as  it  is  stated  in  the  purported  extracts  that  the 
telegram  containing  the  reply  was  the  only  one  of  all  the 
documents  that  was  undated,  while  a  general  inaccuracy 
as  to  dates  is  shown  by  the  fact  that  the  Russian  statements 
of  February  20  and  22  gave  the  date  of  the  Japanese  Dec- 
laration as  the  11th,  whereas  the  correct  date  was  the  10th. 
That  the  reply  was  sent  on  the  4th  is  further  borne  out 
by  the  fact  that  Mr.  Kurino  reported  to  his  superiors  in 
Tokio  that  Count  Lamsdorff  told  him  on  the  evening  of  the 
4th  that  the  telegrams  containing  the  reply  had  just  been 
sent.32 

It  will  be  taken  then,  as  established  beyond  reasonable 
doubt,  that  the  charges  in  the  rejoinder  of  March  12  of  the 
nondelivery  of  the  Rosen  telegram  and  in  the  supposed 
extracts,  of  the  holding  up  of  the  Russian  reply  are  versions 
of  the  same  story  and  that  the  reply  was  sent  on  the  4th 
instead  of  the  3d.  It  remains  then  to  consider  whether 
there  is  any  foundation  for  the  charge  that  the  Japanese 
held  up  the  note  until  after  the  breaking  off  of  diplomatic 
relations  in  order  to  justify  their  conduct  by  a  claim  of 
delay. 

Any  delay  in  delivering  the  Rosen  telegram  must  have 
been  at  most  only  a  few  hours  prior  to  the  sending  of  the 
note  to  Mr.  Kurino. — There  seems  no  reason  to  question  the 
Japanese  statement  that  their  note  breaking  off  diplomatic 
relations  was  sent  early  on  the  afternoon  of  the  5th.  If 
there  was  any  hold  up,  then  it  must  have  been  prior  to  that 
time  and  subsequent  to  the  sending  of  the  telegram  the 
day  before.  This  time  must  be  still  further  reduced  by  the 
difference  in  time  of  seven  hours  between  St.  Petersburg  and 
Tokio  and  the  time  necessary  for  the  transmission  of  the 
message.  This  may  be  calculated  at  twelve  hours  as  that 
was  the  time  taken  by  the  telegram  of  Mr.  Kurino  from 
St.  Petersburg  to  Tokio  sent  the  morning  of  the  5th.  But 
if  this  twelve  hours  is  added  to  the  time  of  the  sending  of 
the  reply  it  makes  it  extremely  improbable  that  it  could 
have  reached  Tokio  before  the  morning  of  the  5th.    At  most 

si  Asakawa,  p.  350. 

32  42  Memorial  Diplomatique,  306. 


166  THE   RUSSO-JAPANESE   WAR. 

there  could  have  been  but  a  delay  of  a  few  hours  in  the  de- 
livery of  the  telegram  before  the  sending  of  the  telegram 
breaking  off  diplomatic  relations.  But  even  this  delay  would 
have  been  evidence  of  bad  faith  on  the  part  of  Japan  if  she 
had  given  the  delay  in  receiving  the  Russian  answer  as  one 
of  her  reasons  for  going  to  war  when  she  herself  was  pre- 
venting its  delivery. 

Most  probable  that  any  such  delay  would  have  occurred 
at  Port  Arthur. — The  statement  of  the  Russian  case  is  that 
"the  delay  did  not  occur  on  the  Siberian  line,  as  was  shown 
by  the  fact  that  a  reply  to  a  telegram  from  Viceroy  Alexieff 
sent  at  the  same  time  was  received  the  same  day.  There- 
fore, it  is  conclusive  that  the  Rosen  telegram  was  held  by 
the  Japanese  and  not  delivered  for  two  days."33  The  rea- 
soning is  not  very  convincing  at  best,  but  in  the  light  of 
the  fact  that  Viceroy  Alexieff  was  to  make  such  local 
changes  as  he  saw  fit  in  the  reply,  it  seems,  with  M.  Rey, 
that  it  is  far  more  probable  that  the  delay  occurred  at  Port 
Arthur  than  that  it  did  at  Tokio.34  As  the  only  official 
charge  with  regard  to  the  nondelivery  of  the  Rosen  tele- 
gram is  the  rather  innocuous  one  in  the  rejoinder  of  March 
12,  it  might  have  been  better  to  have  allowed  it  to  go  un- 
considered until  the  Russian  Government  itself  had  fathered 
the  more  serious  charge,  but  the  purported  extracts  from 
the  Red  Book  have  had  a  certain  authority  and  that  must 
be  the  apology  for  the  consideration  of  this  charge  at  all. 

Days  of  grace. — Mention  has  already  been  made  of  the 
capture  of  certain  Russian  merchant  vessels  at  the  outbreak 
of  the  war.  On  the  9th  of  February  the  Japanese  Emperor 
issued  an  ordinance  decreeing  that  Russian  merchant  ves- 
sels in  Japanese  ports  at  the  time  might  discharge  or  load 
their  cargoes  and  leave  the  country  not  later  than  Febru- 
ary 16,  that  such  vessels,  if  provided  with  the  proper  cer- 
tificate, should  not  be  seized  on  their  way  back  to  the 
nearest  Russian  port  or  to  a  leased  port  or  to  their  original 
destination  and  that  Russian  vessels  leaving  for  a  Japanese 
port  before  February  16  might  enter  and  discharge  their 
cargo  at  once  and  leave  the  country.  All  Russian  vessels 
carrying  contraband  of  war  or  analogues  of  contraband 
were  excluded  from  the  benefits  of  the  ordinance.    This  or- 

33  Asakawa,  p.  361. 

34  13  R.  G.  D.  I.  P.,  624. 


DAYS   OF  GRACE.  167 

dinauce  was  strictly  construed  by  the  prize  courts  and  held 
not  to  apply  to  ships  leaving  Japanese  ports  prior  to  Feb- 
ruary 9,33  and  the  latter  part  of  the  ordinance  only  to  "ships 
of  commerce"  going  into  a  Japanese  port  to  take  on  or 
discharge  a  cargo.  Accordingly  it  was  held  not  to  apply 
to  ships  fitted  out  for  deep-sea  fishing  and  most  of  the  early 
captures  were  of  ships  of  this  character,  nor  to  boats  which 
had  been  sent  out  to  watch  the  fishing  boats,  but  which 
otherwise  retained  their  private  character,  nor  to  ships  hav- 
ing no  cargo  to  discharge,  nor  to  ships  nominally  the  prop- 
erty of  the  East  China  Railroad  Company,  but  liable  to  be 
incorporated  into  the  Russian  navy  in  time  of  war.  Nor 
was  the  ordinance  applied  to  Russian  vessels  going  from  one 
enemy  port  to  another  nor  from  one  neutral  port  to  an- 
other.36 The  time  allowed  in  this  ordinance,  seven  days,  will 
be  seen  to  be  much  shorter  than  has  become  customary  in 
the  wars  of  the  last  half-century.  The  Imperial  Order  of 
the  Russian  Government  dealing  with  this  as  well  as  other 
questions  was  not  issued  until  February  28.  It  allowed 
Japanese  merchant  vessels  in  Russian  ports  at  the  declara- 
tion of  war  to  remain  and  load  their  cargoes  provided  these 
did  not  consist  of  contraband  of  war  and  provided  also 
that  this  period  should  in  no  case  exceed  forty-eight  hours 
from  the  publication  of  the  order  of  the  local  authorities. 
As  the  declaration  of  war  had  been  made  on  the  10th,  this 
gave  Japanese  vessels  in  Russian  ports  at  that  time  twenty 
days  from  the  declaration  of  war  and  somewhat  more  than 
that  from  the  opening  of  hostilities  plus  the  time  taken  by 
the  local  authorities  to  post  the  Czar's  order.  In  length 
of  time  allowed  the  Russian  action  was  therefore  more  lib- 
eral than  the  Japanese,  although  when  it  came  it  was  very 
sudden. 

Russians  resident  in  Japan. — On  the  10th  of  February 
the  Japanese  Minister  of  the  Interior  issued  instructions 
allowing  Russian  subjects  to  remain  in  Japan  during  the 
war  subject  of  course  to  such  precautionary  measures  as 
might  be  necessary  on  the  part  of  the  Japanese  authorities. 
On  the  same  day  the  Minister  of  Public  Instruction  ad- 
dressed a  note  to  the  school  teachers  instructing  them  that 

35  The  Mukden,  Takahashi.   p.   603. 

soRey,  XTV  R.  G.  D.  I.  P..  p.  338,  et  seq. ;  for  the  decisions  of  the 
Japanese  Prize  Courts,  see  Takahashi. 


168  THE   RUSSO-JAPANESE   WAR. 

students  should  be  careful  not  to  manifest  hostility  towards 
Russian  subjects.  A  little  over  a  week  later  the  Minister 
of  the  Interior  likewise  warned  the  heads  of  the  various 
Shinto  and  Buddhist  sects  that  the  war  should  make  no 
difference  in  the  freedom  of  the  exercise  of  their  religion 
by  the  Russians  and  that  they  should  call  the  particular 
attention  of  their  clergy  to  these  instructions.37  During 
the  course  of  the  war  several  important  localities  had  to 
be  subjected  to  martial  law,  namely,  Nagasaki,  the  island 
of  Tsushima  and  the  surrounding  waters,  Hakodate  and 
Sasebo,  but  Mr.  Akiyama  says  that  to  his  personal  knowl- 
edge there  was  not  a  single  case  of  expulsion  or  embargo 
or  even  of  restriction  of  residence  or  travel  of  Russian  sub- 
jects even  in  these  localities.38 

Japanese  resident  in  Russian  territory. — The  continued 
residence  of  Japanese  subjects  in  Russian  territory  was 
regulated  by  Article  I  of  the  Czar's  order  of  February  28. 
It  authorized  all  Japanese  to  remain  except  those  in  the 
Imperial  Lieutenancy  of  the  Far  East.39  As  most  of  the 
Japanese  lived  in  that  district,  however,  the  exception  puts 
the  rule  to  a  very  severe  test  and  there  were  serious  com- 
plaints of  the  indignities  suffered  by  the  Japanese  in  Man- 
churia and  Siberia,40  but  Lawrence  states  that  much  of  the 
cruelty  was  due  to  mob  violence  and  to  lawless  subordinate 
officials,  and  that  Alexieff  exerted  himself  to  secure  better 
treatment  for  the  refugees  so  that  those  who  returned  later 
spoke  of  the  kindness  which  they  had  received.41  In  con- 
sidering this  order  of  the  Czar  we  must  remember  that  it 
was  the  Lieutenancy  of  the  Far  East  that  was  the  theatre 
of  military  operations  and  not  Japan  and  that  the  Japanese 
subjects  in  Manchuria  and  Siberia  were  much  more  of  a 
menace  than  the  Russian  subjects  in  Japan. 

Sinking  of  Japanese  merchantmen. — The  sinking  of  a 
Japanese  merchant  vessel  on  February  11,  and  of  a  Japan- 
ese trading  steamer  and  of  a  transport  on  April  25  by  the 
Vladivostock  Squadron,  excited  unfavorable  comment,  but 
each  case  was  within  one  of  the  generally-recognized  rules 

37Nagaoka,  R.  D.  I.,  p.  480. 
38  P.   5. 

39Hershey,  p.  269. 
40Hershey,  p.  298. 
4i  Lawrence,  p.  39. 


WIRELESS  OPERATORS   NOT  SPIES.  169 

where  the  destruction  of  the  ship  is  allowable.  In  the  first 
ease  the  sea  was  very  rough;  in  the  second  a  superior 
Japanese  squadron  was  in  close  proximity  and  in  the  third 
resistance  was  made  by  part  of  the  crew  and  the  vessel 
was  finally  sunk  by  a  torpedo.  In  the  first  case  the  crew 
were  taken  to  Vladivostock  and  eventually  sent  back  to 
Japan ;  in  the  second  they  were  ordered  ashore,  and  in  the 
third  that  part  of  the  troops  which  surrendered  were  taken 
on  board  the  Russian  ships  as  prisoners  of  war.42  In  all 
there  appear  to  have  been  21  Japanese  vessels  sunk  and 
5  bombarded  but  not  sunk,43  but  the  above  cases  are  typi- 
cal.44 

Threat  to  treat  wireless  operators  as  spies. — Early  in  the 
war  there  arose  an  incident  somewhat  similar  to  that  in  the 
Franco-German  war  when  Prince  Bismarck  threatened  to 
treat  balloonists  as  spies.  On  the  15th  of  April  the  Rus- 
sian ambassador  notified  the  State  Department  that:  'In 
case  neutral  vessels,  having  on  board  correspondents  who 
may  communicate  war  news  to  the  enemy  by  means  of 
improved  apparatus  not  yet  provided  for  by  existing  con- 
ventions, should  be  arrested  off  the  coast  of  Kwantung 
or  within  the  zone  of  operations  of  the  Russian  fleet,  such 
correspondents  shall  be  regarded  as  spies  and  the  vessels 
provided  with  wireless  telegraph  apparatus  shall  be  seized 
as  lawful  prize."45 

Validity  of  threat. — The  occasion  of  this  incident  was  the 
presence  of  the  Chinese  despatch  boat  Haimun  in  the  serv- 
ice of  the  London  and  New  York  Times  as  near  Port 
Arthur  as  wTas  practicable  whence  it  was  sending  messages 
in  cipher  to  the  British  port  of  Wei-hai-wei.46  There  was 
apparently  no  claim  that  the  war  correspondents  were  giv- 
ing information  directly  to  the  Japanese.  The  United 
States  Government  in  taking  note  of  the  Russian  declara- 
tion expressly  refused  to  waive  any  right  it  might  have  in 
case  of  the  arrest  of  an  American  citizen  or  the  seizure  of 
an  American  vessel,47  but  happily  no  such  case  arose.     Un- 

42  Lawrence,  pp.  40-42. 
43Takahashi,  p.  275. 

44  For   a  detailed   account    of  the    sinking    of    merchantmen,    see 
Takahashi,  Part  III,  Chap.  I. 

45  For.  Eel.    (1904),  p.  729. 
46Hershey,  p.  117. 

47  For.  Rel.   (1904),  p.  729. 


170  THE  RUSSO-JAPANESE   WAR. 

doubtedly  if  the  correspondents  had  been  guilty  of  com- 
municating with  the  enemy  they  could  have  been  treated 
as  in  the  enemy  service  and  the  vessels  seized  as  lawful 
prize  and  it  is  also  clear  that  the  Russian  authorities  had 
a  right  to  police  the  seas  in  the  neighborhood  of  the  fleet 
in  order  to  prevent  the  obtaining  of  information,  but  it 
is  equally  clear  that  as  the  war  correspondents  were  not 
"acting  clandestinely  or  under  false  pretences"  they  were 
not  spies.48 

Floating  mines. — During  the  civil  war  General  Sherman 
made  his  famous  protest  against  the  planting  of  explosives 
along  the  roads  in  rear  of  the  retreating  armies  as  un- 
justified by  the  laws  of  war.  An  analogous  situation  at  sea 
arose  during  the  Russo-Japanese  war.  A  Japanese  warship, 
the  Hatsuse,  was  sunk  by  what  is  supposed  to  have  been  a 
marine  mine  on  May  15,  while  cruising  ten  miles  southeast 
of  Port  Arthur  and  hence  on  the  high  seas.  It  is  also  stated 
in  the  Report  of  the  United  States  Delegation  to  the  Second 
Peace  Conference  that  enormous  loss  of  life  and  property 
was  caused  by  floating  mines  in  the  China  Sea  in  the 
vicinity  of  Port  Arthur  after  the  close  of  hostilities.49  Pub- 
lic interest  was  aroused  and  the  demand  that  anchored 
mines  which  may  break  loose  from  their  moorings,  shall, 
by  the  fact  of  going  adrift,  become  harmless  and  that  non- 
anchored  mines  shall  become  inoffensive  within  a  very 
short  time,  one  or  two  hours  at  the  longest,  after  they 
have  passed  out  of  the  control  of  the  party  who  planted 
them50  has  been  embodied  in  one  of  The  Hague  Conven- 
tions.51 

Conversion  of  merchant  ships — The  Peterburg  and  the 
Smolensk. — An  interesting  point  was  raised  during  the  war 
as  to  the  conversion  of  merchant  ships  into  warships.  By 
the  Treaty  of  Paris  of  1856,  Turkey,  when  at  peace,  must 
close  the  passage  of  the  straits  to  ships  of  war  of  all  for- 
eign states  unless  it  may  be  deemed  necessary  to  open  them 
to  secure  the  observance  of  the  treaty  itself.  In  the  Black 
Sea,  however,  Russia  has  what  is  known  as  the  Volunteer 
Fleet,  nominally  owned  by  an  Association,  but  always  at 

4s  (See  21  Annuaire,  pp.  76,  293. 

49  P.   41. 

so  Ibid. 

si  See  infra,  p.  280. 


CONVERSION"   OF   MERCHANT   SHIPS.  171 

the  disposal  of  the  Minister  of  Marine,  the  funds  of  the 
Association  being  derived  in  most  part  from  the  Govern- 
ment. The  officers  belong  to  the  Imperial  navy,  the  crews 
are  under  military  discipline  and  one-third  of  them  must 
have  served  in  the  Active  Fleet.  In  times  of  peace  they 
are  -used  for  the  transportation  of  troops  and  criminals 
from  the  Black  Sea  to  the  Far  East  and  the  tea  and  pas- 
senger trade  between  those  points  is  in  their  hands.  They 
are  always  in  the  service  of  the  government.  Prior  to  the 
war  they  had  been  allowed  to  pass  the  straits  with  occa- 
sional protests  by  the  British  Government.  At  the  out- 
break of  the  war  they  commenced  to  carry  guns  and  am- 
munition in  their  holds  and  thus  were  ready  to  assume  a 
warlike  character  at  any  moment.  Early  in  July  two  ves- 
sels of  this  fleet,  the  Peterburg  and  the  Smolensk  passed  the 
Dardanelles  under  the  merchant  flag.  After  passing 
through  the  Suez  Canal  the  Peterburg  raised  the  Kussian 
naval  ensign,  completed  her  armament  and  on  July  13 
captured  the  British  steamer  Malacca  bound  for  Yokohama, 
via  Hong-Kong.  This  created  the  greatest  excitement,  but 
the  affair  wras  finally  closed  by  the  release  of  the  Malacca 
after  a  purely  formal  examination  with  the  understanding 
that  the  Peterburg  and  the  Smolensk  should  no  longer  act 
as  cruisers.52  There  could  be  little  question  that  these 
ships  satisfied  the  requirements  for  warships  if  it  were  not 
for  the  fact  that  they  had  assumed  that  character  on  the 
high  seas,  and  as  to  whether  that  made  any  difference  the 
Second  Peace  Conference  was  unable  to  come  to  an  agree- 
ment. Great  Britain's  strongest  ground  for  protest  would 
seem  to  have  been  that  by  ships  of  war  the  treaty  of 
Paris  intended  to  include  ships  capable  of  being  converted 
into  ships  of  war  on  the  high  seas,  but  it  is  not  surprising 
that  Russia  gave  an  opposite  construction  to  a  treaty  which 
has  always  been  exceedingly  irksome  to  her. 

Proclamation  of  Viceroy  Alexieff. — In  a  proclamation  of 
February  3  (old  style)  Viceroy  Alexieff  informed  the  peo- 
ples and  officials  in  the  vicinity  of  the  Chinese  Eastern  Rail- 
way that  they  would  be  held  responsible  for  injuries  to  the 
railroad  and  to  the  telegraph  and  telephone  wires  in  their 
districts  and  concluded  with  the  remarkable  provision  that 
"should  any  of  the  Chinese  officials  or  people  look  upon 

02  For  this  whole  question  see  Lawrence,  pp.  202-218. 


172  THE   RUSSO-JAPANESE   WAR. 

the  Russian  troops  with  enmity  the  Russian  Government 
will  surely  take  measures  to  exterminate  such  persons ;  on 
no  account  will  any  leniency  be  shown  them."53  This  would 
have  been  an  extraordinary  exercise  of  authority  on  the 
part  of  sovereignty  over  its  own  subjects  whereas  Russia 
was  not  sovereign  where  this  proclamation  was  to  be  pub- 
lished nor  was  it  her  subjects  to  whom  the  proclamation 
was  addressed. 

Comparatively  few  recriminations. — The  recriminations 
which  were  so  marked  a  characteristic  of  the  South  Afri- 
can and  Franco-German  "Wars  were  not  altogether  lacking 
and  instances  of  them  are  given  by  Mr.  Takahashi  and  by 
Mr.  Hershey,  but  fortunately  they  were  not  numerous. 
Military  operations  were  conducted  on  soil  foreign  to  both 
belligerents,  except  on  the  island  of  Sakhalin,  and  so  the 
regrettable  incidents  which  are  almost  inevitable  where  an 
invading  army  occupies  enemy  soil  inhabited  by  a  patriotic 
population  did  not  arise. 

Care  of  the  sick  and  wounded. — Both  belligerents  were 
parties  to  the  Geneva  and  Hague  Conventions.  While  it  is 
stated  that  the  feelings  between  the  besiegers  and  the  be- 
sieged at  Port  Arthur  became  so  bitter  that  flags  of  truce 
for  the  burial  of  the  dead  were  ignored  and  that  in  conse- 
quence so  many  unburied  Japanese  dead  lay  on  the  ground 
as  to  make  the  stench  unendurable,54  yet  in  general  the 
treatment  of  the  dead  and  the  care  of  the  sick  and  wounded 
on  both  sides  seems  to  have  been  excellent.  In  his  work  en- 
titled The  Real  Triumph  of  Japan,  Dr.  Seaman  testifies  to 
the  wonderful  efficiency  of  the  Japanese  sanitary  service 
and  in  the  chapter  devoted  to  the  Red  Cross  Society  in  his 
From  Tokio  through  Manchuria  shows  the  thorough  prepara- 
tion the  society  had  made  for  the  war.55  He  states  that  it 
has  the  distinction  of  being  not  only  the  richest  but  prob- 
ably the  largest  of  the  national  Red  Cross  Societies.56  Sup- 
plementary to  the  Red  Cross  Society  was  the  Volunteer 
Nurses   Association.57      An    unusual   function   of   the   Red 

53  For.  Rel.    (1904),  p.   128. 
e*  Hershey,  p.  303. 

55  p.  217." 

56  p.  21G. 

57  For  the  history  and  organization  of  these  remarkable  societies  see 
Ariga,  La  Croix-rouge  en  extreme  Orient.  To  the  author  of  that  work 
much  of  the  credit  for  their  efficiency  is  due. 


THE  RUSSIAN  REGULATIONS.  173 

Cross  Society  in  this  war  was  the  care  taken  of  Chinese 
refugees  who  had  been  engaged  on  the  Russian  works  at 
Port  Arthur  before  the  war,  but  who  had  been  discharged 
when  war  commenced.  They  were  largely  from  the  south 
of  China  and  without  the  aid  of  the  society  would  have 
been  subject  to  fearful  privations/'8  The  Russians  seem  to 
have  had  fewer  field  hospitals  than  the  Japanese,  but  a 
notable  feature  of  their  sanitary  service  were  twenty  hos- 
pital trains  fitted  out  with  the  latest  improvements,  each 
capable  of  carrying  four  hundred  men  to  the  base  hospitals 
at  Mukden,  Harbin  and  even  Moscow.59  Twenty  was  also 
the  number  of  the  hospital  ships  fitted  out  by  the  Jap- 
anese.60 

The  Russian  regulations. — In  his  order  of  February  28, 
1904,  the  Czar  directed  the  military  authorities  to  conform 
their  conduct  to  the  St.  Petersburg  Declaration  and  to  the 
Geneva  and  Hague  Conventions.  Copies  of  these  were  dis- 
tributed to  the  troops  and  in  addition  a  set  of  instructions 
was  issued  on  July  14,  1904,  embodying  the  main  provis- 
ions of  The  Hague  Regulations  applicable  to  troops  in  the 
field.  These  were  divided  into  two  parts,  the  first  being 
directed  to  officers  and  the  second  to  noncommissioned  offi- 
cers and  soldiers.  They  formed  a  valuable  supplement  to 
the  convention  as  they  conformed  more  closely  to  the  needs 
of  the  national  army  than  an  international  convention  could. 
The  latter  part  was  especially  commendable.  It  put  in 
short  and  popular  form  those  provisions  of  the  convention 
which  it  was  especially  desirable  to  bring  home  to  the  com- 
mon soldier.61 

Specific  regulations  of  the  Japanese.-JLn- .Japan,  The 
Hague  Convention  had  been  proclaimed  by  an  imperial  de- 
cree in  1900.  No  such  general  instructions  based  on  the 
convent  ion  were  issued,  but  detailed  instructions  covering 
special  points  of  the  convention  were  and  these  have  been 
made  the  subject  of  a  most  enlightening  commentary  by 
Masanosuke  Akiyama,  formerly  Professor  of  Law  at  the 
University  of  Tokio,  Counsellor  to  the  Minister  of  War 
and  to  the  Bureau  of  Legislation  of  the  Imperial  Cabinet 


58  Seaman,  p.  224. 

59  Seaman,  p.  226. 

co  Takahashi,  p.  375. 

«i  See  94  Archives  Diplomatiques,  p.  500,  and  Hershey,  p.  271. 


174  THE  RUSSO-JAPANESE   WAR. 

and  Secretary  during  the  war  to  the  Bureau  of  Informa- 
tion for  Prisoners  of  War.  His  work  constitutes  a  valuable 
contribution  to  the  laws  of  war,  and,  with  his  permission, 
it  will  be  followed  in  considerable  detail.  Due  proportion, 
however,  prevents  its  inclusion  here.  A  summary  of  his 
article  is  given  as  Appendix  I.62 

62  See  infra,  p.  332. 


THE  REVISION  OF  THE  GENEVA  CONVENTION.  175 


CHAPTER  XV. 

THE    REVISION    OF    THE    GENEVA    CONVENTION    AND    THE    SECOND 

PEACE    CONFERENCE. 


The  Geneva  Convention  of  1864  and  the  Additional  Ar- 
ticles of  1868. — The  Geneva  Convention  of  1864  had  many 
imperfections.  It  was  an  important  step  in  the  right  di- 
rection, but  it  was  not  based  on  the  experience  and  dis 
cussion  that  are  necessary  to  the  best  legislation.  Its  im 
perfections  soon  became  apparent  and  as  we  have  seen  the 
attempt  was  made  to  remedy  them  in  the  Additional  Ar- 
tieles  of  IKfiS^and  to  suggest  a  remedy  at  the  Brussels  Con- 
ference of  1 874.  However  great  the  authority  of  the  Addi- 
tional Articles  became,  and  unquestionably  their  authority 
became  very  great,  they  never  became  more  than  a  modus 
vivendi  for  particular  wars  or  an  interpretation  of  great 
scientific  value  of  the  articles  of  the  convention  itself.  They 
were  not  free  themselves  from  the  objection  of  not  taking 
sufficiently  into  account  military  necessities,  and  when  com- 
bined with  the  convention  formed  a  patchwork  which  was 
even  more  confusing  than  the  convention  itself. 

Steps  towards  revision. — About  the  time  of  the  Brussels 
Conference  there  appeared  two  works  on  the  Convention 
of  great  value,  Das  Princip  der  Genser  Convention  und  der 
freiwilligen  nationalen  Hiilfsorganization  fur  den  Krieg, 
1874,  by  Schmidt-Ernsthausen  and  Die  Genser  Convention, 
Historisch  und  kritischdogmatisch  mit  Vorschlagen  zu  ihrer 
Verbesserung,  unter  Darlegung  und  Priisung  der  mit  ihr 
gemachten  Erfahrnngen  und  unter  Benutzung  der  amt- 
lichen,  theilweise  ungedruckten  Quellen  bearbeitet,  ge- 
kronte  Preisschrift,  1876,  by  Lueder,  but  despite  the  sug- 
gestions made  by  the  Brussels  Conference,  little  was  ser- 
iously done  towards  the  revision  of  the  Convention  until 
1892,  when  two  meetings  were  held  by  the  sanitary  staff 
of  the  Swiss  army  at  Olten,  at  which  the  convention  was 
discussed  with  great  ability  and  care  and  a  text  adopted 
embodying  the  work  of  the  assembly.    Colonel  Ziegler,  chief 


ty 


178  THE  REVISION  OF  THE  GENEVA  CONVENTION. 

of  the  sanitary  staff  of  the  Swiss  army,  was  charged  with 
the  work  of  getting  the  Federal  Council,  if  possible,  to  call 
an  International  Conference,  and  with  this  end  in  view  he 
drew  up  a  project  of  convention  based  largely  on  the  de- 
liberations at  Olten,  and  submitted  this  to  the  Federal 
Council,  with  the  prayer  that  they  examine  it  and  take 
some  action  in  the  matter.1 

Initiative  of  Swiss  Federal  Council. — The  Federal  Coun- 
cil consulted  the  International  Committee  of  the  Red  Cross 
which  approved  the  conclusions  of  Ziegler,  but  insisted  on 
the  extention  of  the  convention  to  naval  war.  Indepen- 
dently of  this  the  Italian  Government  had  been  thinking 
of  calling  a  Conference  to  consider  the  extension  of  the 
Convention  to  naval  war,  but  when  it  learned  of  the  steps 
already  taken  by  the  Swiss  Government,  it  courteously 
yielded  the  initiative  to  the  latter  which  soon  after  pre- 
pared a  provisional  program  on  which  it  sought  the  advise 
of  those  competent  in  the  matter.2  One  of  the  results  of 
this  initiative  was  a  work  by  M.  Moynier  entitled,  La  Re- 
vision de  la  Convention  de  Geneve,  published  in  1898. 

But  before  any  final  action  had  been  taken  in  the  matter 
there  appeared  the  famous  circular  of  Count  Mouravieff 
of  the  24th  of  August,  suggesting  the  First  Peace  Confer- 
ence. In  his  second  circular  of  January  11,  1899,  the  Count 
included  in  the  program  of  the  Conference  the  extension 
of  the  Geneva  Convention  to  naval  war.  This  resulted  in 
the  naval  convention  of  1899,  but  it  left  untouched  the  re- 
vision of  the  Geneva  Convention  itself,  although  the  Con- 
ference expressed  the  hope  that  the  Swiss  Government 
would  take  the  initiative  in  calling  another  Conference  to 
bring  that  about.3 

The  Geneva  Conference  of  1906. — Accordingly  in  the 
month  of  May,  1901,  a  note  of  the  Swiss  Government  was 
made  public  inviting  the  powers  signatory  of  the  Geneva 
Convention  to  a  conference  to  discuss  the  advisability  of  a 
revision  of  the  Convention  and  the  modifications  to  be  in- 
troduced.4 This  finally  resulted  in  the  Conference,  the 
opening  session  of  which  was  held  in  the  Assembly  Hall 

iGillot,  p.  126. 

2  Gillot,  p.  127,  et  seq. 

3  Gillot.  p.  130,  et  seq. 

4  Ibid.,  p.  136. 


PRELIMINARY    WORK.  177 

of  the  University  of  Geneva,  at  4  P.  M.,  on  June  11,  1906.5 
But  before  taking  up  the  work  of  the  Conference,  it  may 
be  well  to  touch  for  a  moment  on  the  work  the  Red  Cross 
Societies  and  the  Institute  of  International  Law  had  been 
doing  to  make  the  convention  more  effective. 

Preliminary  work  of  the  Red  Cross  Societies  and  of  the 
Institute  of  International  Law. — The  favor  with  which  the 
Red  Cross  had  been  received  all  over  the  world,  early  led 
to  its  use  as  a  trademark  and  tradename,  and  for  purposes 
which  though  charitable  were  in  no  way  connected  with 
the  Red  Cross  Societies  or  the  official  sanitary  service.  The 
German  Red  Cross  Society  took  up  this  matter  at  its  meet- 
ing at  Frankfort  on  the  Main  in  1880,  but  the  Imperial 
authorities  considered  that  little  could  be  done  in  the  mat- 
ter without  international  action.  Accordingly  this  wTas 
made  the  subject  of  discussion  at  the  International  con- 
ferences of  the  Red  Cross  societies  at  Geneva  in  1884,  Carls- 
ruhe  in  1887,  and  Rome  in  1892,  and  the  wish  expressed 
at  each  of  these  conferences  that  the  Governments  would 
take  effective  steps  to  check  this  abuse  of  the  Red  Cross. 
In  1888  the  International  Committee  of  Geneva  made  in- 
quiry to  find  out  what  steps  had  been  taken  by  the  various 
Governments,  and  was  able  to  report  that  action  had  been 
taken,  notably  in  the  case  of  Austria,  but  in  order  to  clarify 
ideas  and  get  concerted  action  it  offered  a  prize  for  the 
best  paper  on  the  subject,  which  was  awarded  to  M.  Buz- 
zati,  who  came  to  the  conclusion  that  an  international 
agreement  on  this  subject  was  necessary.6  The  question  of 
a  penal  sanction  for  violations  of  the  convention  was  also 
earnestly  discussed  at  the  different  conferences  of  the  Red 
Cross  societies,  and  the  Institute  of  International  Law  at  its 
Cambridge  meeting  in  1895,  expressed  hope  that  the  powers 
signatory  of  the  Geneva  Convention  would  enter  into  an 
agreement  to  pass  military  penal  legislation  covering  all 
possible  infractions  of  the  Convention.  Both  the  Red  Cross 
societies  and  the  Institute  of  International  Law  also  con- 
sidered the  establishment  of  an  international  commission 
charged  with  the  examination  of  alleged  infractions  of  the 
convention,  but  this  was  rejected  by  both.  Other  sugges- 
tions of  the  Red  Cross  societies  were  the  taking  of  meas- 

s  Report  of  the  United  States  Delegation,  p.  2. 
e  Gillot,  p.  104. 

12 


178  THE  REVISION  OF  THE  GENEVA  CONVENTION. 

ures  for  the  identification  of  the  dead  and  for  bringing  the 
knowledge  of  the  convention  to  the  troops.7  It  would  be 
unfair  before  passing  to  the  work  of  the  Conference  not  to 
mention  the  very  able  work  of  M.  Gillot,  entitled  La  Re- 
vision de  la  Convention  de  Geneve  au  point  de  vue  histor- 
ique  et  dogmatique,  published  in  Paris  in  1902. 

Organization  of  the  Conference. — The  Conference  was 
called  to  order  by  the  President  of  the  Swiss  Confederation 
and  proceeded  to  the  election  of  the  Hon.  Edouard  Odier, 
the  first  Swiss  delegate,  as  president,  who  named  M.  Gus- 
tave  Moynier,  Honorary  President  of  the  Conference. 
There  were  thirty-seven  powers  represented,  including  all 
those  powers,  except  Turkey,  which  had  participated  in 
the  first  conference  of  The  Hague,  together  with  the  Cen- 
tral and  South  American  Republics,  and  Korea  and  the 
Congo.  Nearly  all  of  the  independent  powers  of  the  world 
were  represented. 

Membership. — "It  is  interesting  to  observe  that  the  mem- 
bership of  the  conference  comprised  fifteen  ambassadors 
and  ministers,  including  charges  d'affaires;  eighteen  offi- 
cers of  the  diplomatic  or  consular  service ;  thirty-eight  offi- 
cers of  the  army,  of  whom  twenty  were  members  of  the 
medical  or  sanitary  departments  of  the  states  which  they 
represented;  two  officers  of  the  navy;  eight  professors  and 
publicists,  and  four  officers  of  volunteer  Red  Cross  societies. 
Although  but  few  of  the  delegates  directly  represented  the 
volunteer  associations  which  have  been  organized  in  nearly 
all  states  of  the  civilized  world,  many  of  the  representatives 
have  been  officially  associated  with  these  societies  in  var- 
ious capacities,  and  most  of  the  delegates  were  entirely 
familiar  with  the  work  which  has  been  accomplished  by 
them  during  the  past  forty  years."8 

Committees. — As  a  basis  for  the  deliberations  of  the  Con- 
ference, fourteen  questions  had  been  submitted  to  the 
Powers  by  the  Swiss  Government  some  months  in  advance 
and  to  facilitate  its  work  these  were  apportioned  among 
four  committees,  (1)  on  the  sick,  wounded  and  dead;  (2) 
personnel  of  sanitary  formation;  (3)  sanitary  material, 
medical  stores  and  supplies ;  (4)  emblem  of  the  convention, 
with  the  measures  necessary  to  prevent  its  abuse,  together 

7  Gillot,  p.  100-107. 

8  Report  of  United  States  Delegation,  p.  7. 


RULES  OF  ORDER.  179 

with  questions  which  were  not  especially  assigned  to  other 
committees.9 

Rules. — "In  the  deliberations  of  the  committees  the  wid- 
est freedom  of  discussion  was  not  only  permitted,  but  en- 
couraged. Members  of  one  committee  were  permitted  to 
attend  the  meetings  of  the  other  committees,  to  take  part 
in  their  discussions,  and  submit  projects  for  consideration 
or  adoption.  In  all  votes,  however,  whether  in  committee 
or  in  full  conference,  each  state  was  entitled  to  a  single 
voice.  In  each  committee  votes  were  taken  upon  subjects 
submitted  in  the  form  of  questions  or  statements  of  prin- 
ciple, leaving  to  the  subcommittees  appointed  for  that  pur- 
pose the  duty  of  recasting  them  in  the  form  of  articles,  with 
a  view  to  their  consideration  by  the  several  committees 
prior  to  their  submission  to  the  conference  in  plenary  ses- 
sion. 

The  signing  of  the  Convention. — ' '  Triweekly  sessions  were 
held  by  each  of  the  committees  into  which  the  general  mem- 
bership of  the  conference  was  divided,  and  the  discussion 
of  the  questions  referred  to  them  was  prosecuted  with  such 
diligence  and  industry,  during  the  morning  and  the  after- 
noon sessions  of  each  day,  that  their  work  was  completed, 
ready  for  submission  to  the  conference,  on  June  27.  At 
two  plenary  sessions,  which  were  held  on  June  27  and  28 
the  drafts  of  the  several  paragraphs  assigned  to  them  for 
preparation  were  approved  and  referred  to  a  committee 
for  editorial  revision  and  arrangement,  with  a  view  to  their 
incorporation  in  the  final  draft  of  the  convention.  The 
treaty  in  the  form  proposed  by  its  editing  committee  was 
formally  adopted  at  a  plenary  session  of  the  conference 
which  was  held  in  the  Hall  of  the  Grand  Council  of  State 
on  July  5,  1906.  The  convention  was  signed  on  July  6, 
1906,  by  the  plenipotentiaries,  whose  full  powers  had  been 
examined  and  verified  at  a  plenary  session  of  the  confer- 
ence on  the  preceding  day."10 

Reservations. — In  signing  the  Convention  Japan,  Korea, 
China  and  Great  Britain  made  reservations  as  to  the  en- 
gagement to  elaborate  a  military  penal  code  against  infrac- 
tions of  the  Convention,  as  to  the  obligation  to  spread  the 
knowledge  of  it  among  the  troops  and  population  and  as 


Report  of  United  States  Delegation,  p.  9. 
» Ibid.,  p.  13. 


io  Ibid.,  p.  13. 


180  THE  REVISION  OP  THE  GENEVA  CONVENTION. 

to  the  international  regulation  of  the  distinctive  sign  and 
name  of  the  Red  Cross.11 

Formal  articles. — It  is  expressly  stipulated  in  the  con- 
vention that  it  shall  only  be  obligatory  on  the  contracting 
parties  in  case  of  war  between  two  or  more  of  them,  that 
it  shall  supersede  the  Convention  of  August  22,  1864,  in 
the  relations  between  the  Contracting  Powers,  but  that  that 
convention  remains  in  force  between  parties  who  signed  it 
but  who  are  not  signatories  of  this  convention ;  that  Powers 
not  represented  at  the  conference  and  not  signatories  of 
the  old  convention  may  accede  to  it  if  within  a  year  from 
its  notification  to  the  Swiss  Federal  Council,  such  Council 
has  not  been  advised  of  any  opposition  on  the  part  of  any 
of  the  contracting  parties,  and  finally  that  although  it  may 
be  denounced,  such  denunciation  shall  take  effect  only  one 
year  after  notification  to  the  Swiss  Federal  Council. 

Incorporated  in  the  final  Protocol,  although  not  a  part  of 
the  Convention  itself,  was  the  following: 

"In  addition  and  in  conformity  with  article  16  of  the 
convention  for  the  pacific  regulation  of  international  con- 
flicts of  July  29,  1899,  *  *  *  the  conference  has  ex- 
pressed the  following  wish : 

Wish  expressed  by  the  Conference. — "The  Conference 
expresses  the  wish  that  in  order  to  reach  an  interpretation 
and  an  application  of  the  Geneva  Convention  as  exact  as 
possible,  the  contracting  parties  submit  to  the  Permanent 
Court  of  The  Hague,  if  the  case  and  the  circumstances 
allow  of  it,  the  differences  which,  in  time  of  peace,  arise 
between  them  relative  to  the  interpretation  of  the  said  con- 
vention."12 

Merits  of  the  Convention — Terminology. — Of  the  very 
great  merits  of  the  new  convention  too  much  can  hardly  be 
said.  The  old  convention  had  "neutralized"  ambulances, 
military  hospitals  and  the  sanitary  personnel,  but  this  gave  a 
very  misleading  impression  of  the  protection  intended.  The 
ambulances  and  hospitals  were  not  to  be  treated  as  so  much 
neutral  territory  and  as  such  free  from  military  operations. 
They  were  not  even  free  from  seizure,  and  the  equipment 
of  military  hospitals  as  distinguished  from  ambulances  re- 
mained subject  to  the  laws  of  war.    Equally  objectionable 

uDelpech,  13  R.  G.  D.  I.  P.,  653. 
12  Delpech,  13  R.  G.  D.  I.  P.,  666. 


THE  SECOND  PEACE  CONFERENCE.  181 


was  the  term  as  applied  to  the  sanitary  personnel.  It  must 
have  been  galling  to  the  patriotic  surgeon  to  have  been  con- 
sidered a  "neuter"  and  not  as  fully  in  the  service  of  his 
country  as  his  military  brother,  and  on  the  other  hand,  the 
term  would  have  seemed  to  imply  a  freedom  from  control 
by  the  belligerent  holding  him  in  its  power  incompatible 
with  military  necessity.  As  M.  Moynier  had  written  it  was 
"a  neutrality  relative,  conditional  and  temporary."13  It 
was  possible  to  express  the  idea  sought  to  be  expressed  in 
much  simpler  language  and  in  its  desire  for  clearness  the 
Conference  even  avoided  the  use  of  the  word  inviolability 
which  many  had  suggested  in  the  place  of  neutrality. 
Hence  in  the  new  convention  "neutrality"  is  used  in  its 
ordinary  acceptation  and  in  no  sense  peculiar  to  the  Con- 
vention. The  Conference  took  advantage  of  the  technical 
and  juristic  study  and  discussion  which  the  old  Convention 
had  undergone,  and  is  a  monument  to  the  value  of  such 
work  in  clarifying  and  crystallizing  international  conven- 
tions. 

Substantive  matter. — But  the  Conference  did  not  content 
itself  with  questions  of  form,  important  as  these  were.  It 
embodied  the  experience  of  the  wars  during  which  the  old 
Convention  had  been  in  force,  made  better  provision  for 
military  necessity,  and  at  the  same  time  provided  for  the 
policing  of  the  field  of  battle,  the  examination  and  identifi- 
cation of  the  dead,  the  recognition  of  the  Ked  Cross  socie- 
ties, the  protection  of  the  name  and  sign  of  the  Red  Cross 
and  for  the  spread  of  the  knowledge  of  the  Convention  and 
its  effective  execution  through  military  penal  codes.  The 
work  was  effectively  and  ably  done  and  the  Conference  may 
well  challenge  comparison  with  any  of  its  kind. 

THE     SECOND     PEACE     CONFERENCE. 

The  Second  Peace  Conference. — "The  Second  Interna- 
tional Peace  Conference,  proposed  in  the  first  instance  by 
the  President  of  the  United  States  of  America,  having  been 
convoked  on  the  invitation  of  His  Majesty,  the  Emperor 
of  All  the  Russias,  by  Her  Majesty,  the  Queen  of  the  Nether- 
lands, assembled  on  the  15th  of  June,  1907,  at  The  Hague,  in 
the  Hall  of  the  Knights,  for  the  purpose  of  giving  a  fresh 

13  La  Convention  de  Geneve,  p.  141. 


182  THE  REVISION  OF  THE  GENEVA  CONVENTION. 

development  to  the  humanitarian  principles  which  served 
as  a  basis  for  the  work  of  the  First  Conference  of  1899.  "14 
The  delegates  represented  practically  the  civilized  world. 
An  important  addition  to  the  Powers  represented  at  the 
First  Conference  were  the  South  and  Central  American  Re- 
publics. Forty-seven  nations  in  all  received  invitations  and 
these  were  responded  to  and  representatives  sent  by  all  but 
three. 

Organization  and  rules — The  practice  of  the  First  Con- 
ference in  bestowing  the  Presidency  on  the  first  Russian 
delegate  was  followed  by  the  selection  of  M.  Nelidow.     At 
the  second  meeting  of  the  conference  he  proposed  that  the 
Conference  follow  the  procedure  of  the  First  Conference, 
adapting  it,  however,  to  the  new  conditions.     Accordingly 
a  series  of  twelve  rules  was  adopted.     These  provided  that 
commissions  should  be  appointed,  that  the  plenipotentiaries 
should  be  free  to  register  on  these  commissions  at  their  con- 
venience and  to  appoint  technical  delegates  to  take  part 
therein,  that  the  Conference  should  appoint  the  presidents 
and  vice-presidents  of  each  commission,  and  the  commis- 
sions their  secretaries  and  their  reporter,   and  that   each 
commission  should  have  the  power  to  divide  itself  into  sub- 
commissions  which  should  organize  their  own  bureaus.    An 
editing  committee  for  the  purpose  of  coordinating  the  acts 
adopted  by  the   Conference   and  preparing  them  in  their 
final  form  was  to  be  appointed  by  the  Conference  at  the  be- 
ginning of  its  labors.    The  members  of  the  delegations  were 
all  authorized  to  take  part  in  the  deliberations  at  the  plen- 
ary sessions  of  the  conference  as  well  as  in  the  commissions 
of  which  they  formed  part,  it  being  possible  for  the  mem- 
bers of  the  same  delegation  to  replace  each  other.     Those 
members  of  the  Conference  attending  commissions  of  which 
they  were  not  members  were  not  authorized  to  take  part  in 
the  deliberations  without  the  special  authorization  of  the 
president  of  the  commission.     Each  delegation  was  given 
one  vote  which  was  taken  by  roll  call,  in  the  alphabetical 
order  of  the  Powers  represented.     The  proposal  that  the 
delegation  of  one  Power  might  be  represented  by  the  dele- 
gation of  another  Power  was  supressed.     Proposed  resolu- 
tions or  desires  to  be  discussed  by  the  Conference  had,  as 
a  general  rule  to  be  delivered  in  writing  to  the  president 

14  Final  Act. 


THE  SECOND  PEACE  CONFERENCE.  l&o 

and  to  be  printed  and  distributed  before  being  taken  up 
for  discussion.  There  were  similar  provisions  with  regard 
to  the  reports  of  the  commissions  and  subcommissions.  Suc- 
cinct resumes  of  the  deliberations  of  the  plenary  sessions 
and  of  the  commissions  were  to  be  delivered  to  the  mem- 
bers and  not  read  at  the  beginning  of  the  sessions.  Each 
delegate  was  to  have  the  right  to  request  the  insertion  in 
full  of  his  official  declarations  and  to  make  observations 
regarding  the  minutes.  The  public  was  to  be  admitted  to 
the  plenary  sessions  by  ticket,  except  where  the  bureau 
might  decide  that  certain  sessions  should  not  be  public. 
Finally,  the  French  language  was  recognized  as  the  official 
language  of  the  deliberations  and  of  the  acts  of  the  Con- 
ference, and  the  Secretary  General  was  directed,  with  the 
consent  of  the  speaker  himself,  to  see  that  the  speeches  de- 
livered in  any  other  language  should  be  summarized  orally 
in  French. 

Division  of  the  work  among  four  commissions. — Four 
commissions  were  appointed,  and  the  subjects  outlined  in 
the  program  of  the  Conference  were  divided  among  them 
as  follows : 

FIRST    COMMISSION. 

Arbitration. 

International  commissions  of  inquiry  and  questions  con- 
nected therewith. 

SECOND    COMMISSION. 

Improvements  in  the  system  of  the  laws  and  customs  of 
land  warfare. 

Opening  of  hostilities. 
Declarations  of  1899  relating  thereto. 
Eights  and  obligations  of  neutrals  on  land. 
if 

THIRD    COMMISSION". 

Bombardment  of  ports,  cities  and  villages  by  a  naval 
force. 

laying  of  torpedoes,  etc. 

The  rules  to  which  the  vessels  of  belligerents  in  neutral 
ports  would  be  subjected.  ^ 


184  THE  REVISION  OF  THE  GENEVA  CONVENTION. 

Additions  to  be  made  to  the  convention  of  1899  in  order 
to  adapt  to  maritime  warfare  the  principles  of  the  Geneva 
Convention  of  1864,  revised  in  1906. 

FOURTH    COMMISSION. 

Transformation  of  merchant  vessels  into  war  vessels. 

Private  property  at  sea. 

Delay  allowed  for  the  departure  of  enemy  merchant  ves- 
sels in  enemy  ports.  / 

Contraband  of  war.     Blockades*/  >- 

Destruction  of  neutral  prizes  by  force  majeure}/ 

Provisions  regarding  land  warfare  which  would  also  be 
applicable  to  naval  warfare. 

Organization  of  the  commissions. — M.  Leon  Bourgeois,  of 
France,  was  selected  as  the  President  of  the  first  commis- 
sion, M.  Beernaert,  of  Belgium,  as  the  president  of  the  sec- 
ond, and  M.  T.  M.  C.  Asser,  of  The  Netherlands,  as  assis- 
tant president,  Count  Tornielli,  of  Italy,  as  the  president 
of  the  third  commission,  and  M.  de  Martens,  of  Russia,  as 
the  president  of  the  fourth.  The  recommendation  that  the 
deliberations  of  the  commissions  be  kept  secret,  or  at  least 
not  communicated  to  the  press  was  unanimously  adopted, 
but  was  not  universally  adhered  to  by  the  delegates. 

Signing  of  the  Final  Act. — The  first,  second  and  third 
commissions  were  subsequently  divided  into  subcommis- 
sions,  and  at  various  times  committees  were  appointed  to 
still  further  expedite  work  of  the  Conference.  Most  of 
the  work  of  the  editing  committee,  provided  for  in  the  rules 
of  the  Conference,  was  done  by  a  subcommittee  of  eight. 
The  results,  so  far  as  the  several  commissions  desired,  were 
reported  to  the  full  Conference,  and  after  approval  were 
put  into  proper  form  by  the  subediting  committee.  The  re- 
sults thus  reached  were  included  in  the  Final  Act  and  signed 
by  the  plenipotentiaries  on  the  18th  day  of  October,  d907, 
upon  which  date  the  Conference  adjourned.15 

Work  of  the  Conference  coming  within  the  scope  of  this 
work. — The  work  of  the  first  commission,  arbitration  \nd 
international  commissions  of  inquiry,  lies  outside  of  he 
scope  of  this  work.     The  same  may  be  said  with  regard  to 

is  The  above  account  is  taken   from  the  Report  of  the  American 
Delegation. 


THE  SECOND  PEACE  CONFERENCE.  185 

the  rights  and  obligations  of  neutrals  on  land,  the  rules  to 
which  the  vessels  of  belligerents  in  neutral  parts  would  be 
subjected,  contraband  of  war,  blockades  and  the  destruc- 
tion of  neutral  prizes  by  force  majeure.  Two  other  matters 
which  were  made  the  subject  of  convention,  but  which  were 
not  included  in  the  original  program,  the  use  of  force  in 
the  collection  of  contract  debts  and  the  establishment  of 
an  international  prize  court  are  omitted  for  the  same  rea- 
son. Although  the  British  plan  restricting  the  Interna- 
tional Court  to  matters  affecting  neutrals  was  rejected,  the 
interest  of  neutrals  in  the  Court  is  so  preponderating  as  to 
preclude  its  consideration  in  a  work  on  the  laws  of  war  as 
between  belligerents.  Of  the  thirteen  Conventions  and  one 
Declaration  drawn  up  by  the  Conference,  nine  in  all,  in- 
cluding the  Declaration,  come  with  the  scope  of  this  work. 
These  will  be  considered  in  the  order  in  which  they  were 
divided  among  the  commissions. 

Convention  respecting  the  Laws  and  Customs  of  War  on 
Land. — The  Convention  respecting  the  Laws  and  Customs 
of  "War  on  Land  of  1899  was  found  to  need  little  amend- 
ment. Its  provisions  had  been  the  subject  of  so  much  ex- 
pert discussion  ever  since  they  were  first  drawn  up  at  Brus- 
sels that  even  the  South  African  and  Russo-Japanese  Wars 
offered  little  occasion  for  change.  Two  changes  which  may 
possibly  be  charged  to  the  latter  are  the  requirement  of 
greater  detail  in  the  card  kept  for  prisoners  of  war  in  Ar- 
ticle XIV,  and  the  requirement  of  Article  XVII  that  the 
scale  of  pay  for  officers  who  are  prisoners  of  war  shall  be 
that  of  the  captor's  army  and  not  that  of  their  own.  On 
the  proposition  of  Germany,  clause  XXIII  (h)  was  added 
which  forbids  declaring  abolished,  suspended  or  inadmis- 
sible in  a  Court  of  law  the  rights  and  actions  of  the  nation- 
als of  the  hostile  party.  This,  apparently,  works  an  im- 
portant change  in  Anglo- American  law  in  allowing  an  alien 
enemy  to  sue.16  It  had  always  been  recognized  as  harsh 
that  a  belligerent  could  compel  the  nationals  of  the  hostile 
party  to  serve  him  as  guides.  The  worst  features  of  this 
practice,  if  not  the  practice  itself,  is  forbidden  by  the  new 
article  XLIV.17 

Article  LII  was  amended  so  as  to  give  the  receipts  for 

is  See  infra,  p.  210. 
17  See  infra,  p.  310. 


186  THE  KEVISION  OF  THE  GENEVA  CONVENTION. 

articles  which  have  been  requisitioned  somewhat  more  of 
the  character  of  indemnities18  and,  strange  as  it  may  seem, 
submarine  cables  connecting  an  occupied  territory  with  a 
neutral  territory  were  placed  within  the  protection  of  the 
Convention  in  Article  LIV.  Former  Articles  LIV,  LVII, 
LVTII,  LIX  and  LX  became,  respectively,  Articles  XIX,  XI, 
XII,  XIV  and  XV  of  the  Convention  respecting  the  Rights 
and  Duties  of  Neutral  Powers  and  Persons  in  case  of  War 
on  Land.  In  the  Convention  proper  there  was  added  as 
Article  III,  a  provision,  penal  in  its  nature,  making  a  bel- 
ligerent party  responsible  in  damages  for  acts  committed 
by  persons  in  its  service  in  violation  of  the  Regulations. 

This  important  statement  is  made  in  the  preamble : 

Statement  of  general  principles  in  the  Preamble. — "Ac- 
cording to  the  views  of  the  High  Contracting  Parties,  these 
provisions,  the  wording  of  which  has  been  inspired  by  the 
desire  to  diminish  the  evils  of  war,  as  far  as  military  re- 
quirements permit,  are  intended  to  serve  as  a  general  rule 
of  conduct  for  the  belligerents  in  their  mutual  relations  and 
in  their  relations  with  the  inhabitants.     *     *     * 

"Until  a  more  complete  code  of  the  laws  of  war  has  been 
issued,  the  High  Contracting  Parties  deem  it  expedient  to 
declare  that,  in  cases  not  included  in  the  Regulations 
adopted  by  them,  the  inhabitants  and  the  belligerents  re- 
main under  the  protection  and  the  rule  of  the  principles  of 
the  law  of  nations,  as  they  result  from  the  usages  estab- 
lished among  civilized  peoples,  from  the  laws  of  humanity 
and  the  dictates  of  the  public  conscience. 

"They  declare  that  it  is  in  this  sense  especially  that  Ar- 
ticles I  and  II  of  the  Regulations  adopted  must  be  under- 
stood." 

Opening  of  Hostilities. — The  Convention  relative  to  the 
Opening  of  Hostilities  was  a  result  of  the  Russo-Japanese 
War.  Although  one  of  its  express  purposes  is  "that  hos- 
tilities should  not  commence  without  previous  warning," 
the  Conference  failed  to  agree  on  even  a  delay  of  twenty- 
four  hours  between  the  declaration  and  the  commencement 
of  hostilities,  so  that  it  will  in  no  degree  lessen  the  neces-, 
sity  of  preparedness  for  action,  to  obviate  which  a  warn- 
ing might  have  been  desirable.  On  the  other  hand  it  is 
likely  to  give  rise  to  the  controversies  which  characterized 

is  See  infra,  p.  319. 


THE  SECOND  PEACE  CONFERENCE.  187 

the  former  period  when  a  previous  declaration  of  war  was 
considered  necessary.19  As  was  said  in  the  Report  of  the 
American  Delegation,  its  importance  "to  prospective  bel- 
ligerents may  be  open  to  doubt."  The  American  Delega- 
tion, however,  felt  that  it  safeguarded  the  rights  of  neu- 
trals and  so  gave  it  their  approval. 

Declaration  concerning  the  discharge  of  projectiles  from 
balloons. — Of  the  Declarations  of  1899,  the  only  one  con- 
sidered was  that  with  regard  to  discharging  projectiles 
from  balloons  which  had  expired  by  its  five-year  limitation. 
This  was  renewed  for  a  period  extending  to  the  close  of 
the  Third  Peace  Conference. 

Bombardment  by  naval  forces. — The  Convention  respect- 
ing Bombardment  by  Naval  Forces  in  Time  of  War,  marked 
the  fulfillment  of  the  wish  of  the  First  Conference.  In 
many  respects  it  is  an  adaptation  of  the  principle  of  the 
Land  Convention  with  regard  to  bombardments  to  naval 
warfare,  but  in  others  it  is  an  improvement  on  that  con- 
vention and  it  gave  concrete  form  to  principles  of  inde- 
pendent value.  It  provides  that  undefended  towns  shall 
not  be  bombarded  on  account  of  failure  to  pay  money  con- 
tributions, and  that  military  establishments  in  undefended 
towns  shall  ordinarily  not  be  subject  of  bombardment, 
unless  all  other  means  be  impossible  and  a  reasonable  time 
given  to  the  inhabitants  to  destroy  them  themselves,  and  in 
that  case  the  commander  shall  take  all  due  measures  in 
order  that  the  town  may  suffer  as  little  damage  as  possible. 
The  improvements  over  the  Land  Convention  were  in  re- 
quiring a  warning  "if  the  military  situation  permits"  in- 
stead of  excepting  only  cases  of  assault  and  in  specifying 
the  sign  to  indicate  monuments,  etc.,  as  "large,  stiff,  rect- 
angular panels  divided  diagonally  into  two  colored  tri- 
angular portions,  the  upper  portion  black,  the  lower  por- 
tion white." 

Automatic  submarine  contact  mines. — The  Convention 
relative  to  the  Laying  of  Automatic  Submarine  Contact 
Mines  leaves  to  the  unwritten  law  the  anchoring  of  such 
mines  in  the  high  seas  beyond  the  territorial  waters  of  the 
belligerents,  but  as  far  as  it  goes20  it  regulates  a  subject 
with  regard  to  which  little  law  has  grown  up  and  which 

is  See  infra,   p.  200. 
20  See  infra,   p.  280. 


188  THE  REVISION  OF  THE  GENEVA  CONVENTION. 

the  events  of  the  Russo-Japanese  War  showed  needed  regu- 
lation.21 It  is  limited  to  seven  years,  but  if  not  denounced 
continues  in  force  after  the  termination  of  this  period. 

Naval  Red  Cross  Convention. — The  Convention  for  the 
Adaptation  to  Naval  War  of  the  Principles  of  the  Geneva 
Convention  was  an  admirable  piece  of  work  rendered  less 
difficult  by  the  labors  of  the  Geneva  Conference  of  1906. 
Perhaps  the  most  notable  improvements  over  the  naval 
convention  of  1899  are  the  placing  of  neutral  hospital  ships 
under  the  control  of  one  of  the  belligerents,  and  the  speci- 
fication of  the  right  of  the  belligerents  to  demand  that  the 
sick,  wounded  or  shipwrecked  on  board  military  hospital 
ships,  hospital  ships  belonging  to  relief  societies  or  to  pri- 
vate individuals,  merchant  ships,  yachts  or  boats,  whether 
enemy  or  neutral,  shall  be  handed  over.22 

The  Convention  relative  to  the  Conversion  of  Merchant 
Ships  into  Warships  leaves  untouched  the  question  whether 
such  conversion  may  take  place  on  the  high  seas,  but  it 
forms  a  valuable  supplement  to  the  Declaration  of  Paris 
in  defining  the  conditions  under  which  private  owned  ships 
may  engage  in  hostilities.  The  United  States  did  not  sign 
or  adhere  to  this  Convention,  because  it  is  not  a  party  to 
the  Declaration  of  Paris. 

Effort  to  exempt  private  property  at  sea  from  capture. — 
The  Convention  relative  to  Certain  Restrictions  with  regard 
to  the  Exercise  of  the  Right  of  Capture  in  Naval  War  is 
what  is  left  of  the  effort  of  the  United  States  for  the  gen- 
eral exemption  of  private  property  at  sea.  In  accordance 
with  the  action  of  the  United  States  at  the  First  Peace  Con- 
ference, Mr.  Choate  proposed  the  exemption  from  capture 
at  sea  of  all  property,  except  under  the  laws  of  contraband 
and  blockade.  Other  proposals  were  made  by  Belgium, 
Brazil  and  France.  The  Belgium  proposal  provided  that 
merchantmen  and  their  cargoes,  in  certain  cases  the  value 
of  the  property  destroyed,  and  in  cases  where  the  cargoes 
are  perishable,  "the  sales  moneys,  were  to  be  restored  to 
the  owners  by  the  captors'  state,  without  any  indemnity, 
for  deprivation  of  enjoyment,  or  for  deterioration  not 
caused  by  grave  fault;  but  that  the  state  might  shift  the 

21  See  supra,  p.  170. 

22  See  infra,  p.  272. 


THE  SECOND  PEACE  CONFERENCE.  189 

burden  to  the  enemy  state  by  the  treaty  of  peace."23    This 
is  somewhat  like  the  treatment  to  which  private  munitions 
of  war,  seized  on  land,  will  probably  be  subjected  under 
H  Lin.    The  Brazilian  proposal  provided  for  the  giving  of 
receipts  as  in  cases  of  requisition  on  land.    The  French  pro- 
posal was  based  on  the  idea  that  the  right  of  prize  should 
appear  solely  as  a  means  of  bringing  pressure  to  bear  on 
the  hostile  state,  that,  accordingly,  all  profit  to  the  indi- 
vidual captor  should  be  excluded,  and  that,  furthermore, 
losses  incurred  by  individuals  should  fall  in  last  resort  on 
their  state.     Accordingly  the  French  Delegation  proposed 
that  the  commission  should  express  the  wish  that  shares  of 
prize  money  should  be  suppressed  and  that  states  should 
take  some  measures  to  reimburse  those  suffering  by  capture. 
On  a  vote  being  taken  in  the  fourth  commission  on  the  pro- 
posal of  the  United  States,  there  were  21  votes  in  favor  of 
it  and  11  against,  with  some  abstentions.    Among  those  who 
voted  in  favor  of  it  were  Austria-Hungary,  Belgium,  Bra- 
zil, Germany   (with  reservations),  Italy,  The  Netherlands, 
Switzerland   and   the    United    States.      Among   those   who 
voted  against  it  were  France,  Great  Britain,  Japan,  Russia 
and   Spain.     This   made   four   of  the   great   naval  powers 
against  it  as  opposed  to  possibly  three,  Germany,  Italy  and 
the  United  States,  in  favor  of  it.    The  vote  on  a  test  clause 
of  the  Brazilian  proposal  was  13  to  12  against  it  and  it  was 
withdrawn.     The  vote  on  the  first  clause  of  the  Belgian 
proposal  was  14  to  9  in  its  favor,  but  as  the  opposition  to  it 
was  also  strong  it  was  withdrawn.     Later  the  French  pro- 
posal was  modified  so  as  to  convey  an  invitation  to  the 
Powers  to  abolish  prize  money,  rather  than  to  express  a 
wish  to  that  effect,  and  this  was  carried  by  a  vote  of  16 
to  4  with  14  abstentions.     The  second  part  of  the  French 
proposal,  looking  to  the  indemnification  of  the  owners  of 
captured  property  was  lost  by  a  vote  of  13  to  7,  with  14 
abstentions.     All  this  had  occurred  in  the  Fourth  Commis- 
sion.24    It  evidently  considered  that  no  satisfactory  report 
could  be  made  to  the  full  Conference,  so  that  the  Final  Act 
is  without  an  expression  of  opinion  on  the  general  subject, 

23  Westlake,  II  International  Law,  312. 

24  For  this  whole  matter,  see  Westlake,  II  International  Law,  311— 
314. 


190  THE  REVISION  OP  THE  GENEVA  CONVENTION. 

except  insofar  as  that  is  involved  in  its  fourth  wish  which 
is  as  follows : 

Wish  of  the  Conference. — "The  Conference  expresses  the 
opinion  (vocu)  that  the  preparation  of  regulations  relative 
to  the  laws  and  customs  of  naval  war  should  figure  in  the 
programme  of  the  next  Conference,  and  that  in  any  case 
the  Powers  may  apply,  as  far  as  possible,  to  war  by  sea  the 
principles  of  the  Convention  relative  to  the  Laws  and  Cus- 
toms of  War  on  Land."25 

Special  restrictions  on  the  right  of  capture. — The  special 
restrictions  on  the  right  of  capture  in  naval  war  that  did 
find  their  way  into  the  Convention,  however,  were  not  un- 
important, and  the  statement  in  the  preamble  that  it  is 
expedient  to  commence  codifying  in  regulations  of  general 
application  the  guarantees  due  to  peaceful  commerce  and 
legitimate  business,  may  give  a  glimpse  of  hope  to  those 
who  wish  for  wider  restrictions  in  the  future.  The  restric- 
tions exempting  coast  fishing  vessels,  and  vessels  charged 
with  religious,  scientific  or  philanthropic  missions  embody 
the  customary  law,  but  the  exemption  of  small  boats  em- 
ployed in  local  trade  is  new,  and  the  provision  exempting 
postal  correspondence  from  capture  is  an  innovation  of 
great  value.  The  provisions  in  regard  to  the  treatment  of 
the  captain,  officers  and  crews  of  captured  merchant  ships 
allow  their  release  on  parole.  Neutral  members  of  crews 
are  to  be  released  without  condition. 

Status  of  enemy  ships  at  outbreak  of  hostilities. — The 
Convention  relative  to  the  Status  of  Enemy  Merchant  Ships 
at  the  Outbreak  of  Hostilities  innovated  on  the  existing 
practice  by  conditioning  the  right  of  a  ship,  leaving  its 
last  port  of  departure  before  the  commencement  of  the  war, 
to  enter  the  hostile  port,  on  its  ignorance  of  hostilities. 
Even  in  case  of  ignorance  it  may  be  detained  subject  to  be 
restored  or  requisitioned,  or  even  destroyed  on  payment 
of  compensation.  The  American  Delegation  felt  that  this 
was  reactionary,  so  that  the  United  States  neither  signed 
nor  adhered  to  it.26 

Formal  parts  of  the  Conventions. — For  the  formal  parts 
of  the  above  Conventions  common  to  all  or  most  of  them, 
the  reader  is  referred  to  the  text  of  the  Convention  respect- 

25  The  Second  International  Peace  Conference,  p.  198. 

26  See  infra,  p.  205. 


THE  SECOND  PEACE  CONFERENCE.  191 

ing  the  Laws  and  Customs  of  War  on  Land,  given  as  Appen- 
dix II.  The  preamble,  with  the  exception  of  the  reasons 
on  which  the  Conventions  are  based,  is  common  to  all. 
Article  II  providing  that  the  provisions  of  the  Convention 
do  not  apply  except  between  Contracting  Powers,  and  then 
only  if  all  the  belligerents  are  parties  to  the  Convention, 
is  common  to  all  except  the  Convention  relative  to  the 
Opening  of  Hostilities.  Its  language  is  hardly  applicable 
to  that  convention  because  it  would  be  anomalous  for  that 
Convention  to  speak  of  belligerents  prior  to  a  declaration. 
Article  III  of  that  Convention,  however,  is  open  to  a  similar 
construction. 

Article  IV  of  the  Land  Convention  is  similar  to  G  N  XXV, 
and  provides  that  the  Convention,  duly  ratified,  shall  as 
between  the  contracting  Powers,  be  substituted  for  the  old 
Convention  of  July  29,  1899,  but  that  the  Convention  of 
1899  remains  in  force  between  the  Powers  which  signed  it, 
and  which  do  not  also  ratify  the  new  Convention. 

Article  V  is  common  to  all  the  conventions.  It  provides 
that  the  Convention  shall  be  ratified  as  soon  as  possible; 
that  the  ratifications  shall  be  deposited  at  The  Hague,  and 
makes  provision  for  the  sending  by  The  Netherlands  Gov- 
ernment of  duly  certified  copies  of  the  proces-verbal  relative 
to  the  first  deposit  of  ratifications,  of  the  notification  of  the 
subsequent  ratifications  and  the  instruments  of  ratification 
accompanying  them,  together  with  notice  of  the  date  at 
which  the  latter  were  received,  to  the  Powers  invited  to 
the  Second  Peace  Conference  and  the  other  adhering  Powers. 
Article  VI  is  common  to  all  the  conventions,  except  the 
Geneva  Naval  Convention.  It  provides  for  the  adhesion 
of  nonsignatory  Powers  by  notice  to  The  Netherlands  Gov- 
ernment, which  shall  make  this  known  to  the  other  Powers 
as  in  the  preceding  Article.  The  corresponding  article  of 
the  Geneva  Naval  Convention  restricts  the  adhesion  of  non- 
signatory  Powers  to  those  who  have  accepted  the  Geneva 
Convention  of  July  6,  1906.  Article  VII  is  common  to  all. 
and  provides  that  the  Convention  shall  go  into  effect  sixty 
days  after  the  date  of  the  proces-verbal  of  the  first  deposit 
or  a  similar  period  after  the  receipt  of  the  notification  of 
ratification  by  The  Netherlands  Government. 

Article  VIII  deals  with  denunciations  and  is  common  to 
all  except  the  Convention  relative  to  Automatic  Submarine 


192  THE  REVISION  OF  THE  GENEVA  CONVENTION. 

Contact  Mines.  It  provides  that  in  the  event  of  one  of  the 
Contracting  Powers  wishing  to  denounce  the  Convention, 
it  may  do  so  by  notice  to  the  Netherlands  Government, 
which  shall  notify  the  other  Powers,  and  that  this  shall 
only  have  effect  in  regard  to  the  notifying  Power,  and  one 
year  after  the  notification  has  reached  The  Netherlands 
Government.  The  corresponding  article  in  the  Mines  Con- 
vention varies  because  of  its  limitation  to  seven  years  and 
fixes  six  months  as  the  period  in  which  the  denunciation 
shall  go  into  effect  instead  of  one  year. 

Article  IX  is  common  to  all  the  Conventions  and  provides 
that  a  registry  be  kept  by  The  Netherlands  Ministry  for 
Foreign  Affairs  of  ratifications,  notifications  and  denuncia- 
tions, to  which  each  of  the  Contracting  Powers  is  entitled  to 
access,  and  to  be  supplied  with  a  certified  copy.  The  orig- 
inal Convention  is  deposited  in  the  archives  of  The  Nether- 
lands Government,  and  duly  certified  copies  sent  to  the 
Powers  invited  to  the  Second  Conference. 

Difference  in  form  between  Conventions  and  Declaration. 
— For  the  difference  in  form  between  the  Conventions  and 
the  Declaration  the  reader  is  likewise  referred  to  the  text 
of  the  Declaration  Prohibiting  the  Discharge  of  Projectiles 
from  Balloons,  given  as  Appendix  III.  It  will  be  seen  that 
the  Declaration  is  in  the  name  of  the  Plenipotentiaries,  in- 
stead of  in  the  name  of  the  Chief  Executives,  as  is  the 
case  with  the  Conventions,  and  that  the  requirements  for 
ratification  are  less  formal,  but  that  otherwise  there  is  lit- 
tle difference. 

The  Final  Act. — The  Conventions  and  Declaration  form 
so  many  separate  acts.  In  addition  the  Conference  drew 
up  its  Final  Act.  This  is  not  a  Convention,  but  rather  a 
statement  of  the  work  and  opinions  of  the  Conference  itself. 
Some  of  the  views  expressed  by  the  Conference  have  been 
given  elsewhere  in  this  work.27  Its  last  recommendation  is 
as  follows : 

Wish  for  a  Third  Peace  Conference. — "Finally,  the  Con- 
ference recommends  to  the  Powers  the  assembly  of  a  Third 
Peace  Conference,  which  might  be  held  within  a  period  cor- 
responding to  that  which  has  elapsed  since  the  preceding 
Conference,  at  a  date  to  be  fixed  by  common  agreement  be- 
tween the  Powers,  and  it  calls  their  attention  to  the  neces- 

27  See  pp.  190,  214. 


THE  SECOND  PEACE  CONFERENCE.  193 

sity  of  preparing  the  programme  of  this  Third  Conference 
a  sufficient  time  in  advance  to  ensure  its  deliberations  being 
conducted  with  the  necessary  authority  and  expedition. 

"In  order  to  attain  this  object  the  Conference  considers 
that  it  would  be  very  desirable  that,  some  two  years  be- 
fore the  probable  date  of  the  meeting,  a  preparatory  Com- 
mittee should  be  charged  by  the  Governments  with  the 
task  of  collecting  the  various  proposals  to  be  submitted  to 
the  Conference,  of  ascertaining  what  subjects  are  ripe  for 
embodiment  in  an  International  Regulation,  and  of  prepar- 
ing a  programme  which  the  Governments  should  decide 
upon  in  sufficient  time  to  enable  it  to  be  carefully  examined 
by  the  countries  interested.  This  Committee  should  further 
be  intrusted  with  the  task  of  proposing  a  system  of  organi- 
zation and  procedure  for  the  Conference  itself." 

Signatories.— The  Final  Act  was  signed  by  the  Pleni- 
potentiaries of  all  the  Powers,  except  Paraguay  and  Tur- 
key, with  a  reservation  on  the  part  of  Switzerland  to  wish 
No.  1  concerning  a  Judicial  Arbitration  £ourt  which  was 
not  acceptable  to  the  Federal  Council.  The  Powers  which 
signed  none  but  the  Final  Act  were  Germany,  Austria, 
Hungary,  China,  Ecuador,  Great  Britain,  Italy,  Japan, 
Nicaragua  and  Switzerland,  but  it  is  thought  that  ultimate- 
ly at  least  there  will  be  practical  unanimity  on  most  of  the 
Conventions  and  the  Declaration  which  come  within  the 
scope  of  the  work. 

M.  Renault. — Before  closing  the  account  of  the  Confer- 
ence it  is  fitting  to  allude  to  the  preeminent  work  of  one 
man,  M.  Renault.  It  has  been  said  that  "from  the  15th  day 
of  June  to  the  18th  day  of  October,  he  dominated  the  Sec- 
ond Hague  Conference,  not  as  a  Frenchman  or  as  a  member 
of  the  French  Delegation,  but  as  a  citizen  of  the  world,  the 
trusted  friend  and  adviser  of  his  colleagues."28 

The  work  of  the  Conference.— The  great  work  of  the 
Conference  lay  elsewhere,  but  in  codifying  the  law  on 
which  there  was  a  consensus  of  opinion,  in  introducing 
into  the  law  such  beneficent  provisions  as  those  protecting 
mails,  and  finally  in  showing  the  progressive  nature  of  the 
conventional  law  of  war,  it  accomplished  results  of  per- 
manent value. 

28  2  American  Journal  of  International  Law,  153. 

13 


PART  II. 
COMMENTARY. 


195 


\l 


COMMENCEMENT  OF  WAR.  197 


pn 


CHAPTER  I. 

COMMENCEMENT  OF  WAR. 


Measures  of  force  falling  short  of  war. — All  measures  of 
force  infringing  the  rights  of  another  state  are,  strictly 
speaking,  acts  of  war,  but  in  the  past,  especially,  it  has 
been  felt  desirable  that  there  should  be  measures  of  force 
which  should  not  involve  all  the  serious  consequences  of 
war,  but  which  could  yet  be  resorted  to  for  the  purpose 
of  bringing  a  refractory  state  to  terms.  Down  to  the  end 
of  the  eighteenth  century  the  two  most  common  measures 
"oTthis  kind  were  embargo  and  reprisals.  Embargo  gen- 
eTaHy~consisted  of  the  detention  of  the  ships  of  the  offend- 
ing state  until  satisfaction  was  secured,  while  reprisals 
consisted  of  almost  any  other  hostile  seizure  of%ipersons 
or  property  not  intended  to  constitute  formal  warTj  Prop- 
erty thus  seized  was  not  usually  applied  immediately  to 
the  satisfaction  of  the  injury  complained  of,  but  was  set 
aside  for  some  time  in  hope  of  satisfaction  being  granted 
by  the  other  party.1  General  Reprisals  were  national  acts, 
and  must  be  distinguished  from  the  practice  of  Special 
Reprisals,  which  flourished  during  the  Middle  Ages,  and 
which  were  merely  means  of  private  redress.  Since  the 
Napoleonic  period  both  the  Embargo  and  General  Reprisals 
have  fallen  very  generally  into  disuse. 

Pacific  blockades. — Towards  the  more  backward  powers, 
however,  those  which  have  shown  an  inability  or  a  disin- 
clination to  live  up  to  their  international  obligations,  meas- 
ures of  force  falling  short  of  war  are  still  quite  frequently 
used.  They  usually  take  the  form  of  Pacific  Blockades. 
These  are  directed  at  the  shipping  of  the  offending  power, 
and  do  not  affect  neutrals;  for  the  power  which  is  seeking 
to  enforce  its  claim  can  have  no  authority  on  the  high  seas 
or  in  the  territory  of  the  other  power  over  the  vessels  of 
a  third  power  except  through  the  belligerent  rights  which 
war  gives.2     This  principle  is  well  established.3     The  in- 

i  Halleck,  Inter.  Law,  p.  471. 

2  Annuaire  de  Institut  de  Droit  International,  1887-8,  p.  300. 

3  But  see  Westlake,  II  International  Law,  17. 


198  COMMENCEMENT  OF   WAR. 

efficacy  of  blockades  which  do  not  affect  neutral  ship- 
ping, however,  often  leads  to  its  inclusion  in  blockades 
which  are  intended  as  the  only  hostile  measures  against 
the  refractory  power,  and  which  thus  bear  a  close  resem- 
blance to  blockades  that  are  pacific.  They  are,  however, 
unequivocal  acts  of  war,  and  involve  all  the  legal  conse- 
quences of  war.  In  Pacific  Blockades  property  may  be 
sequestered  but  not  confiscated  unless  war  ensues.4 

The  opening  of  hostilities. — The  opening  of  hostilities  is 
regulated  by  the  following  Convention  drawn  up  at  the 
Second  Peace  Conference. 

Considering  that  it  is  important,  in  order  to  ensure  the 
maintenance  of  pacific  relations,  that  hostilities  should  not 
commence  without  previous  warning. 

That  it  is  equally  important  that  the  existence  of  a 
state  of  war  should  be  notified  without  delay  to  neutral 
Powers  [the  Plenipotentiaries  of  the  Contracting  Powers] 
have  agreed  upon  the  following  provisions : 

Art,  Io  The  Contracting  Pavers  recognize  that  hostilities 
between  themselves  must  not  commence  without  'previous  and 
explicit  warning,  in  the  form  either  of  a  reasoned  declaration 
of  war,  or  of  an  ultimatum  with  conditional  declaration  of  war. 

Art.  IL  The  existence  of  a  state  of  war  must  be  notified 
to  the  neutral  Powers  without  delay,  and  shall  not  take  effect 
in  regard  to  them  until  after  the  receipt  of  a  notification, 
which  may,  however,  be  given  by  telegraph.  Neutral  Powers, 
nevertheless,  cannot  rely  on  the  absence  of  notification  if  it  is 
clearly  established  that  they  were  in  fact  aware  of  the  exis- 
tence of  a  state  of  war. 

Art.  III.  Article  I  of  the  present  Convention  shall  take 
effect  in  case  of  war  between  two  or  more  of  the  Contracting 
Powers. 

Article  II  is  binding  as  between  a  belligerent  Power  which  is 
a  party  to  the  Convention  and  neutral  Powers  which  are  also 
parties  to  the  Convention. 

Comment  of  the  American  delegation. — "The  convention 
is  very  short  and  is  based  upon  the  principle  that  neither 
belligerent  should  be  taken  by  surprise,  and  that  the  neu- 
tral shall  not  be  bound  to  the  performance  of  neutral  du- 
ties until  it  has  received  notification,  even  if  only  by  tele- 
gram, of  the  outbreak  of  the  war.    The  means  of  notifica- 

4  ibid. 


OPENING   OF   HOSTILITIES.  199 

tion  is  considered  unimportant,  fur  if  the  neutral  knows, 
through  whatever  means  or  whatever  channels,  of  the  ex- 
istence of  war,  it  cannot  claim  a  formal  notification  from 
the  belligerents  before  being  taxed  with  neutral  obliga- 
tions. While  the  importance  to  prospective  belligerents 
may  be  open  to  doubt,  it  is  clear  that  it  does  safeguard 
in  a  very  high  degree  the  rights  of  neutrals  and  specifies 
authoritatively  the  exact  moment  when  the  duty  of  neu- 
trality begins.  It  is  for  this  reason  that  the  American  dele- 
gation supported  the  project  and  signed  the  convention."5 

Of  doubtful  utility  to  belligerents. — The  doubt  expressed 
by  the  American  Delegation  as  to  the  utility  of  the  con- 
vention to  belligerents,  is  well  founded.  Although  the 
delegation  reecho  the  sentiment  of  the  preamble  that  the 
convention  is  based  upon  the  principle  that  neither  bellig- 
erent should  be  taken  by  surprise,  its  real  effect,  as  West- 
lake  says,  has  been  to  confirm  rather  than  to  weaken  "the 
necessity  that,  in  order  not  to  be  taken  unprepared,  every 
nation  must  rely  on  its  own  vigilance,  and  on  no  formal 
rule."6  If  some  provision  had  been  inserted,  like  the  reso- 
lution of  the  Institute  of  International  Law,  that  hostilities 
should  only  be  commenced  after  the  expiration  of  a  delay 
sufficient  to  prevent  the  requirement  of  a  previous  and 
nonequivocal  delay  being  elusive,7  it  might  have  been  con- 
tended that  the  convention  would  have  had  a  tendency 
to  prevent  war  by  postponing  the  active  military  prepara- 
tions which  immediately  precede  operations,  and  which  at 
present  have  a  tendency  to  precipitate  war,  until  after  the 
formal  declaration  or  the  ultimatum.  But  not  only  was 
no  such  provision  inserted,  but  even  the  proposal  of  a 
delay  of  twenty-four  hours  made  by  the  delegation  of  The 
Netherlands  was  rejected.8  It  may  justly  be  contended 
that  such  a  delay  is  implied,  but  it  is  clear  that  no  gov- 
ernment would  be  justified  in  foregoing  military  prepara- 
tions in  reliance  on  such  an  implication. 

Treachery  in  the  initiation  of  war  illegal. — It  is  true 
now,  just  as  it  has  been  for  centuries,  that  where  one 
nation  has  a  grievance  against  another,  it  is  bound  to  de- 

s  Report  of  the  American  Delegation,  p.  34. 

6  Westlake,  II  International  Law,  2(57. 

7  21  Annuaire,  293. 

s  Westlake,  II  International  Law,  267. 


200  COMMENCEMENT  OF  "WAR. 

mand  redress,  and  not  to  resort  to  force  until  there  has  been 
a  denial  or  delay  in  satisfying  its  claim,  except,  for  in- 
stance, where  it  is  attacked.  And  there  has  been  little 
cause  for  complaint  on  this  ground  during  the  last  hun- 
dred years.  But  this  principle,  that  treachery  in  the  in- 
itiation of  hostilities  is  illegal,  is  quite  remote  from  the 
question  whether  a  formal  declaration  in  the  nature  of  a 
warning  should  be  required. 

Advantages  and  disadvantages  of  convention. — As  be- 
tween belligerents,  the  convention  has  this  advantage,  if 
it  be  such,  that  it  will  more  sharply  differentiate  measures 
falling  short  of  war  from  war  itself,  but  on  the  other  hand, 
it  has  the  distinct  disadvantage  that  it  is  liable  to  give  rise 
to  endless  controversy  and  recrimination.  One  of  the  most 
mooted  questions  with  the  old  publicists  was  as  to  when  a 
declaration  of  war  was  not  necessary.  Many  held  that  it 
was  not  necessary  in  a  defensive  war,  but  it  is  often  diffi- 
cult to  say  when  a  war  is  defensive.  Take,  for  instance,  a 
conflict  over  a  boundary.  Each  claimant  is  liable  to  say 
that  the  other  committed  the  first  overt  act.  Numerous 
other  instances  might  also  be  given  where  controversy  is 
likely  to  arise.  (jWhere  an  ally  has  joined  one  ot-the  bellig- 
erents, is  it  necessary  to  declare  war  against  hirnj]  Would 
it  have  been  necessary  in  the  South  African  War,  where 
Great  Britain  claimed  a  sort  of  suzerainty,  and  which  ac- 
cordingly was  somewhat  in  the  nature  of  a  civil  war?  All 
these  things  are  what  render  the  utility  of  the  convention 
as  between  belligerents  doubtful. 

The  expression  "reasoned  declaration  of  war"  in  the  first 
article  is  not  a  very  happy  one.  The  translation  given  in 
the  American  Journal  of  International  Law,  "a  declara- 
tion of  war  with  the  reasons  therefor"9  better  expresses 
the  sense  of  the  original.  Nor  should  the  article  read  that 
hostilities  "must  not  commence  without,  etc."  A  more  cor- 
rect rendering  is  that  they  "should  not  begin  without, 
etc.,"10  or  that  they  "ought  not  to  commence  without, 
etc."11 

Effect  of  the  breaking  out  of  war  on  the  general  legal 
relations  of  the  belligerents  and  their  citizens.— War  works 

£>  Vol.  2,  p.  86. 

io  Ibid. 

u  II  Westlake,  267. 


EFFECT  ON   TREATIES.  201 

a  profound  change  in  the  legal  relations  between  the  bel- 
ligerents and  between  those  private  persons  who  are  af- 
fected with  the  enemy  character.  The  treaties  between  the 
two  powers  are  perhaps  for  the  most  part  abrogated;  con- 
tracts between  private  persons  are  suspended12  or  dissolved, 
and  new  contracts  entered  into  are  null  and  void,  unless 
they  arise  from  the  war,  as  for  instance  ransom  bills,  or 
are  excepted  from  the  usual  prohibition  of  commercial  in- 
tercourse. Furthermore,  commercial  intercourse  of  every 
kind  is  usually  prohibited,  although  there  is  a  growing 
tendency  to  make  the  prohibition  less  general. 

Effect  on  treaties. — Just  what  treaties  or  provisions  of 
treaties  are  not  abrogated  has  been  a  matter  of  controversy. 
As  to  the  continued  obligation  of  stipulations  whose  only 
operation  is  in  time  of  war,  which  acknowledge  indebted- 
ness, or  by  which  a  "status  is  permanently  established  or 
a  right  permanently  vested,"  there  is  no  question.13  A 
stipulation  that  the  citizens  of  each  belligerent  found  in 
the  territory  of  the  other  at  the  outbreak  of  war  may 
have  a  reasonable  time  in  which  to  wind  up  their  affairs 
and  leave  the  country,  obviously  can  have  no  application 
except  in  time  of  war.  It  is  also  well  settled,  on  the  foun- 
dation of  the  good  faith  and  credit  of  governments,  that 
the  obligation  of  national  debts,  and  of  treaties  acknowl- 
edging such  debts,  remain  unimpaired  by  war.  As  to 
treaties  by  which  a  "status  is  permanently  established  or 
a  right  permanently  vested,"  it  would  have  been  intolera- 
ble if  the  breaking  out  of  the  War  of  1812  had  broken  the 
force  of  the  acknowledgment  of  our  independence  by  Great 
Britain  in  1783,  or  if  a  subsequent  war  had  broken  the  force 
of  the  treaties  settling  boundary  disputes  and  left  all  those 
disputes  to  be  settled  over  again.  Another  exception  is  that 
of  "treaties  establishing  arrangements  to  which  third  pow- 
ers are  parties,  such  as  guarantees  and  postal  and  other 
unions."14  Beyond  these  lines,  the  law  has  been  little  de- 
veloped. Continental  writers  incline  to  the  view  against 
abrogation,  except  in  the  case  of  treaties  of  alliance,  and 
there  may  be  a  tendency  in  that  direction;  but  it  cannot 

12  But  see  infra,  p.  210. 

is  Moore,  The  Effect  of  War  on  Public  Debts,  Columbia  Law  Review, 
Vol.  I,  p.  216. 

i*  Westlake,  II  International  Law,  31. 


202  COMMENCEMENT  OF   WAR. 

be  said  to  have  yet  attained  the  dignity  of  law;  and,  ex- 
cept as  to  treaties  whose  continuing  obligation  is  clear, 
it  is  advisable  to  deal  with  the  subject  in  the  treaty  of 
peace. 

Effect  on  commercial  intercourse. — It  is  usual  to  state 
that  war  itself  renders  all  intercourse  between  private  per- 
sons invested  with  the  enemy  character  illegal.  While  this 
may  in  a  strict  sense  be  true,  there  exists  a  tendency  to 
assume  that  intercourse  not  unequivocally  forbidden  is 
allowed,  which  practically  amounts  to  the  doctrine  of  the 
continental  publicists,  that  it  is  not  the  war  itself  that 
renders  such  intercourse  illegal,  but  its  prohibition  by  the 
political  authorities.  This  tendency  was  shown  in  the  opin- 
ion of  the  Supreme  Court  of  the  United  States,  in  the  case 
of  Matthews  v.  McStea,15  decided  in  1875.  The  question  in- 
volved was  whether  a  partnership  existing  between  resi- 
dents of  New  York  and  Louisiana,  at  the  outbreak  of  the 
Civil  War  was  still  in  existence  on  April  23,  1861,  the 
court  having  already  held  that  the  President  had  recog- 
nized a  state  of  war  as  existing  by  his  blockade  proclama- 
tion of  April  19,  while  the  proclamation  of  nonintercourse, 
which  Congress  had  authorized  on  July  13,  was  not  issued 
till  August  16.  If  the  war  itself  broke  all  legal  relations 
between  enemies,  then  the  partnership  was  dissolved  by 
April  19 ;  but  the  court  held  that  the  partnership  was  still 
in  existence  four  days  later.  What  makes  the  case  the 
more  important  is,  that  early  in  the  opinion  Justice  Strong 
says  "it  is  undeniable  that  civil  war  brings  with  it  all 
the  consequences  in  this  regard  (as  to  the  cessation  of 
commercial  intercourse)  which  attend  upon  and  follow  a 
state  of  foreign  war."  Further  on  he  says:  "No  declara- 
tion of  war  was  ever  made.  The  President  recognized  its 
existence  by  proclaiming  a  blockade  on  the  19th  of  April; 
and  it  then  became  his  duty  as  well  as  his  right  to  direct 
how  it  should  be  carried  on.  In  the  exercise  of  this  right 
he  was  at  liberty  to  allow  or  license  intercourse,  and  his 
proclamations,  if  they  did  not  license  it  expressly,  did,  in 
our  opinion,  license  it  by  very  cogent  implications.  It  is 
impossible  to  read  them  without  a  conviction  that  no  in- 
terdiction of  commercial  intercourse  except  through  the 
ports   of  the   designated  states   was   intended.     But   in  a 

is  91  United  States,  7. 


COMMERCIAL  INTERCOURSE.  203 

civil  more  than  in  a  foreign  war  or  in  a  war  declared, 
it  is  important  that  unequivocal  notice  should  be  given  of 
the  illegality  of  traffic  or  commercial  intercourse ;  for,  in 
a  civil  war  only  the  government  can  know  when  the  in- 
surrection has  assumed  the  character  of  war."10 

Interdiction  of  commercial  intercourse. — It  is  desirable 
that  the  view  that  war  itself  does  not  put  an  end  to  com- 
mercial intercourse,  but  that  its  illegality  depends  on  its 
interdiction  by  the  political  authorities,  should  find  even 
wider  recognition  that  it  has;  for,  when  once  the  stoppage 
of  traffic  requires  positive  action  on  the  part  of  the  author- 
ities, a  long  step  ahead  has  been  taken  in  securing  the 
continuance  of  the  ordinary  conditions  of  peace  between 
those  parts  of  the  territories  of  the  belligerents  not  the 
scene  of  active  military  operations.  Where  commerce  is 
allowed,  the  rule  that  an  alien  enemy  has  no  standing  in 
court  does  not  apply,  and  contracts  can  be  made  and  en- 
forced as  in  time  of  peace.17  Since  the  beginning  of  the 
Crimean  War,  a  very  large  indulgence  in  commerce  be- 
tween belligerents  has  been  allowed.  Thus,  in  the  Spanish- 
American  War,  neutral  vessels  laden  with  American-owned 
cargoes  other  than  contraband  of  war  were  cleared  for 
Spanish  ports.18 

Treatment  of  the  citizens  of  the  other  belligerent  in  the 
country  at  the  outbreak  of  war. — Even  where  commerce 
is  generally  interdicted,  it  may  now  be  said  to  have  become 
a  rule  of  law  that  a  belligerent  must  allow  a  reasonable 
time  for  the  nationals  of  the  enemy  to  close  up  their  affairs 
and  withdraw  from  the  country.  An  exception  was  made 
to  this  principle  with  regard  to  those  nationals  called  home 
for  service  in  the  active  army,  by  the  French  in  the  Franco- 
German  War,  and  its  reasonableness  has  commended  itself 
to  Calvo  and  others.  It  has  even  become  customary  to 
allow  the  nationals  of  the  enemy  to  remain  in  the  country 
throughout  the  war,  on  condition  of  good  behavior,  but 
they  are  often  subject  to  regulations,  such  as  registration, 
and  cases  may  easily  arise  where  expulsion  is  justifiable, 
although  it  has  generally  been  considered  that  the  expul- 

16  91  United  States,  pp.   12-13. 

17  Phillimore,  Inter.   Law,  III,   pp.    134-136. 
is  Moore,  Inter.  Law  Situations,  pp.  176-177. 


204  COMMENCEMENT  OF  WAR. 

sion  of  the  Germans  by  the  French  in  1870  was  extreme 
and  carried  out  with  unnecessary  harshness. 

Right  to  withdraw  goods  in  the  territory  of  the  other 
belligerent  at  the  outbreak  of  war. — Withdrawal  of  goods 
from  the  enemy's  country  within  a  reasonable  time  after 
the  outbreak  of  war,  does  not  render  them  liable  to  con- 
fiscation on  the  ground  that  the  owner  has  been  engaged 
in  commerce  with  the  enemy.  So  the  Supreme  Court  of 
New  York  held  in  1818,19  in  an  opinion  delivered  by  Chief 
Justice  Thompson,  afterwards  a  member  of  the  Supreme 
Court  of  the  United  States  and  one  of  the  ablest  judges 
that  ever  sat  on  that  bench.  The  effect  of  this  decision 
is  somewhat  restricted  by  the  previous  decision  of  the  Su- 
preme Court  of  the  United  States  in  the  case  of  The  Rapid,20 
in  which  it  was  held  that,  where  a  person  went  after  the 
outbreak  of  war  to  withdraw  goods  from  the  enemy's  ter- 
ritory, even  though  they  had  been  purchased  in  time  of 
peace,  he  was  guilty  of  trading  with  the  enemy  and  his 
property  subject  to  confiscation.  But  this  decision  is  con- 
trary to  the  tendencies  of  today  and  would  probably  not 
be  followed.  The  right  to  withdraw  goods  would  probably 
be  held  to  include  the  right  to  dispose  of  them,  or  the  right 
to  put  them  into  such  shape  as  to  be  easily  transported, 
provided  this  was  done  in  good  faith  and  without  the  in- 
tention of  engaging  in  forbidden  traffic.21 

No  right  to  confiscate  private  debts. — Again,  although  in 
the  past,  the  right  to  confiscate  the  property  of  subjects 
of  the  enemy,  including  debts  due  to  them  by  private  per- 
sons, has  been  asserted,  and  although  dicta  to  that  effect 
are  to  be  found  in  the  case  of  United  States  against  Brown22 
such  a  position  would  be  clearly  untenable  today,23  and  a 
government  attempting  to  exercise  such  a  power  would  be 
severely  condemned24  even  without  the  express  prohibi- 
tion drawn  up  at  the  Second  Peace  Conference.25 

is  Amory  et  al.  v.  McGregor,  15  Johnson,  24. 
208  Cranch,  155. 

2i  Forty-two  bales  of  cotton,   Blatehford's   Prize  Cases,   664;   Sarah 
Starr  and  cargo,  Blatehford's  Prize  Cases,  650. 
228  Cranch,  110. 

23  See  H  XLVI. 

24  As  to  the  action   of  the  United   States   and  Confederate  Govern- 
ments, during  the  Civil  War,  see  supra,  p.  75. 

25  H  XXIII   (h). 


ENEMY  MERCHANT  SHIPS.  205 

Enemy  merchant  ships  at  outbreak  of  hostilities. — The 
status  of  an  enemy  merchant  ship  at  the  outbreak  of  hos- 
tilities was  made  the  subject  of  the  following;  convention 
at  the  Second  Peace  Conference,  although  it  was  not  signed 
or  ratified  by  the  United  States. 

Anxious  to  ensure  the  security  of  international  commerce 
against  the  surprises  of  war,  and  wishing,  in  accordance 
with  modern  practice,  to  protect  as  far  as  possible  opera- 
tions undertaken  in  good  faith  and  in  process  of  being 
carried  out  before  the  outbreak  of  hostilities;  [the  Pleni- 
potentiaries of  the  Contracting  Powers]  have  agreed  upon 
the  following  provisions : 

Art.  I.  When  a  merchant  ship  belonging  to  one  of  the  bel- 
ligerent Powers  is  at  the  commencement  of  hostilities  in  an 
enemy  port,  it  is  desirable  that  it  should  be  allowed  to  depart 
freely,  either  immediately,  or  after  a  reasonable  number  of 
days  of  grace,  and  to  proceed,  after  being  furnished  with  a  pass, 
direct  to  its  port  of  destination  or  any  other  port  indicated. 

The  same  rule  should  apply  in  the  case  of  a  ship  which  has 
left  its  port  of  departure  before  the  commencement  of  the  war 
and  entered  a  port  belonging  to  the  enemy,  while  still  ignorant 
that  hostilities  had  broken  out. 

Art.  II.  A  merchant  ship,  unable,  owing  to  circumstances 
of  force  majeure,  to  leave  the  enemy  port  within  the  period 
contemplated  in  the  above  Article,  or  which  was  not  allowed  to 
leave,  can  not  be  confiscated. 

The  belligerent  may  only  detain  it,  without  payment  of  com- 
pensation, but  subject  to  the  obligation  of  restoring  it  after  the 
war,  or  requisition  it  on  payment  of  compensation. 

Art.  III.  Enemy  merchant  ships  which  left  their  last  port 
of  departure  before  the  commencement  of  the  war,  and  are  en- 
countered on  the  high  seas  while  still  ignorant  of  the  outbreak 
of  hostilities  can  not  be  confiscated.  They  are  only  liable  to 
detention  on  the  understanding  that  they  shall  be  restored  after 
the  war  without  compensation,  or  to  be  requisitioned,  or  even 
destroyed,  on  payment  of  compensation,  but  in  such  case  pro- 
vision must  be  made  for  the  safety  of  the  persons  on  board  as 
well  as  the  security  of  the  ship's  papers. 

After  touching  at  a  port  in  their  own  country  or  at  a  neutral 
port,  these  ships  are  subject  to  the  laws  and  customs  of  mari- 
time war. 

Art.  IV.     Enemy  cargo  on  board  the  vessels  referred  to  in 


206  COMMENCEMENT  OF  WAR. 

Articles  I  and  II  is  likewise  liable  to  be  detained  and  restored 
after  the  termination  of  the  war  without  payment  of  compen- 
sation, or  to  be  requisitioned  on  payment  of  compensation,  with 
or  without  the  ship. 

The  same  rule  applies  in  the  case  of  cargo  on  board  the  ves- 
sels referred  to  in  Article  III. 

Art.  V.  The  present  Convention  does  not  affect  merchant 
ships  whose  build  shows  that  they  are  intended  for  conversion 
into  warships. 

Disapproval  of  American  delegation. — "The  uninterrupt- 
ed practice  of  belligerent  Powers  since  the  outbreak  of  the 
Crimean  War  has  been  to  allow  enemy  merchant  vessels 
in  their  ports  at  the  outbreak  of  hostilities,  to  depart  on  their 
return  voyages.  The  same  privilege  has  been  accorded  to 
enemy  merchant  vessels  which  sailed  before  the  outbreak 
of  hostilities,  to  enter  and  depart  from  a  belligerent  port 
without  molestation  on  the  homeward  voyage.  It  was  there- 
fore the  view  of  the  American  delegation  that  the  privilege 
had  acquired  such  international  force  as  to  place.it  in  the 
category  of  obligations.  Such,  indeed,  was  the  view  of  a 
majority  of  the  Conference,  but  as  the  delegation  of  Great 
Britain  adhered  to  the  opinion  that  such  free  entry  and 
departure  was  a  matter  of  grace,  or  favor,  and  not  one  of 
strict  right,  the  articles  regard  it  as  a  delay  by  way  of 
favor  and  refer  to  the  practice  as  desirable.  *  *  *  But 
all  these  immunities  are  conditioned  upon  ignorance  of  the 
existence  of  hostilities  on  the  part  of  the  ship.  This  con- 
dition forms  no  part  of  the  existing  practice,  and  it  was 
the  opinion  of  the  delegation  that  it  substantially  neutral- 
ized the  apparent  benefits  of  the  treaty  and  puts  merchant 
shipping  in  a  much  less  favorable  situation  than  is  ac- 
corded to  it  by  the  international  practice  of  the  last  fifty 
years. '  '2{J 

The  law  independent  of  convention. — The  legal  position 
taken  by  the  American  delegation  is  supported  by  strong 
authority.  Such  an  able  British  publicist  as  Westlake, 
writing  just  before  the  Conference,  was  of  opinion  that 
the  liberal  practice  of  the  last  fifty  years  had  ripened  into 
law,27   and  probably  few  who   believe  with  the   Supreme 

26  Report  of  the  American  Delegation,  pp.  38-39, 

27  II  International  Law,  40. 


ENEMY   MERCHANT  SHIPS.  207 

Court  in  the  case  of  the  Paquete  Habana?8  that  the  cus- 
tomary law  of  nations  is  subject  to  growth,  would  differ 
from  him.  It  was  matter  for  argument,  however,  and  prob- 
ably little  importance  would  have  been  attached  to  the 
word  "desirable"  if  the  existing  practice  had  been  em- 
bodied in  the  convention  in  the  form  it  has  usually  appeared 
in  the  prize  regulations.  The  rule  of  the  convention  does 
not  differ  as  to  the  most  usual  case,  where  the  ship  arrives 
at  the  hostile  port  without  any  such  information  as  to 
charge  it  with  knowledge  of  the  hostilities,  but  the  pro- 
vision with  regard  to  knowledge  is  new,  and  may  be  of 
considerable  importance  if  the  enemy  cruisers  choose  to 
lie  off  the  hostile  ports  for  the  purpose  of  notifying  incom- 
ing merchant  ships.  It  is  also  of  importance  to  ships 
equipped  with  wireless  telegraphy  apparatus.  The  idea 
seems  to  be  that  it  would  be  unfair  to  capture  a  hostile 
vessel  in  port  at  the  time  war  breaks  out,  or  even  one  com- 
ing in  afterwards  in  ignorance  of  the  hostilities,  but  that 
if  an  enemy  vessel  becomes  aware  of  hostilities  before  en- 
tering an  enemy  port,  it  is  only  natural  that  she  should 
return  home  or  seek  a  neutral  port.  This  seems  somewhat 
less  liberal  than  practice  has  been,  but  it  is  more  rational 
unless  one  sees  in  the  practice  the  entering  wedge  for  the 
exemption  of  private  property  at  sea  altogether. 

Apparent  misconception  in  American  report. — In  criticis- 
ing the  Convention,  the  American  report  goes  on  to  say 
that  "an  enemy  merchant  vessel  approaching  a  hostile  port 
which  is  notified  by  an  armed  cruiser,  or  which  obtains 
the  information  under  circumstances  calculated  to  charge 
it  with  knowledge  of  the  fact  that  hostilities  exist,  forfeits 
the  immunities  conferred  by  the  treaty  and  becomes  eo 
instante  liable  to  capture."29  If  this  is  intended  to  mean 
that  a  ship  which  has  been  warned  and  changes  its  course 
for  a  home  or  neutral  port,  is  liable  to  capture,  it  is  sub- 
mitted that  this  is  error.  The  second  paragraph  of  Article 
III  would  then  have  no  signification.  That  paragraph  must 
be  taken  to  mean  that  if  after  receiving  notice  of  hos- 
tilities, the  ship  makes  for  a  neutral  or  home  port,  it  is 
not  pliable  to  capture  until  it  has  touched  at  one  or  the 
other.    Although  not  liable  to  capture,  however,  it  is  liable 

28 175  U.  S.,  694. 
29  P.  39. 


208  COMMENCEMENT  OF   WAR. 

to  detention  without  compensation,  or  to  requisition- or  even 
destruction,  with  compensation. 

On  the  whole  it  is  not  perhaps  unnatural  that  the  Amer- 
ican delegation  took  the  attitude  they  did  towards  this 
Convention,  in  view  of  their  stand  for  the  exemption  of 
private  property  at  sea  from  capture  altogether,  and  even 
on  the  narrower  ground  that  it  was  less  liberal  than  the 
existing  practice,  but  it  might  well  be  urged  that  it  was 
not  so  much  a  change  from  existing  practice  as  a  more 
careful  and  matured  expression  of  it,  and  that  it  substi- 
tuted for  a  practice  of  doubtful  obligation  and  uncertain 
tenor  an  agreement  that  was  clear  cut  and  rational,  if  not 
so  liberal. 

Contracts  made  during  the  general  suspension  of  inter- 
course are  in  general  void. — Contracts  made  with  the  en- 
emy from  the  time  that  the  general  interdiction  of  com- 
merce goes  into  effect  until  the  interdiction  is  raised,  are 
in  general  void.  This,  however,  does  not  apply  to  con- 
tracts entered  into  by  nationals  of  the  opposing  belligerents 
both  residing  in  the  territory  of  one  of  them,  where  it  is 
clear  that  the  contract  was  not  entered  into  with  any 
design  of  violating  the  policy  of  nonintercourse.  So  a 
lease  made  during  the  Civil  War  in  Mississippi,  by  a  citi- 
zen of  Mississippi  to  a  citizen  of  Massachusetts,  whose  resi- 
dence was  in  Mississippi,  where  the  continued  residence  of 
the  lessee  upon  the  demised  premises  throughout  the  term 
seemed  to  be  contemplated  and  where  there  was  no  evi- 
dence of  intention  that  the  crop  or  the  rent  should  be  sent 
across  the  hostile  lines,  was  held  to  be  valid.30  So,  also, 
contracts  for  the  relief  of  the  necessities  of  prisoners  of 
war  in  a  hostile  country  have  been  held  valid. 

Contracts  rendered  void. — Conversely,  contracts  which 
necessitate  intercourse  between  the  two  countries  are  ren- 
dered void.  Thus,  partnerships  are  dissolved  as  well  as 
agencies  to  collect  and  transmit  money;  but  an  agency  to 
collect  and  hold  money  if  such  agency  was  created  before 
the  war  is  not  annulled.31  And  where,  by  the  terms  of  a 
policy  of  insurance,  the  contract  was  avoided  by  the  non- 
payment of  premiums,  it  was  held  that  although  the  ex- 

30  Kershaw  v.  Kelsey,  100  Mass.,  561. 

si  Matthews  v.  McStea,  91  United  States,  7;  Insurance  Company  v. 
Davis,  95  U.  S.,  425. 


EFFECT  ON  CONTRACTS.  209 

istence  of  war,  and  the  consequent  legal  inability  to  pay 
the  premiums,  which  had  fallen  into  arrears,  had  annulled 
the  contract,  yet  the  insured  was  entitled  to  recover  back 
the  equitable  value  of  the  policy  at  the  time  the  war  broke 
out.32 

Insurance  against  the  acts  of  the  government  of  the  in- 
surer.— Insurance  against  the  action  of  the  government  of 
the  insurer  is  held  to  be  void.  It  seems  eminently  reason- 
able that  the  government  should  not  allow  its  nationals 
to  nullify  its  own  acts  by  giving  insurance  against  them. 
In  a  case  arising  during  the  South  African  War,  insurance 
was  allowed  against  the  act  of  the  Transvaal  Government 
in  commandeering  the  property  of  a  corporation,  originally 
incorporated  in  Natal  but  also  incorporated  in  the  Trans- 
vaal.33 Whether  the  corporation  be  viewed  as  a  British 
or  as  a  Boer34  corporation,  this  decision  was  eminently 
sound,  for  the  rule  is  that  an  insurance  company  shall  not 
nullify  the  act  of  its  own  government,  not  that  it  shall 
not  nullify  the  act  of  the  enemy.  Insuring  a  British  cor- 
poration against  loss  by  acts  of  the  enemy  would  certainly 
be  proper,  and  there  seems  no  sound  reason  why  an  enemy 
corporation  should  not  receive  like  protection,  as  forced 
levies  during  war  are  more  likely  to  be  caused  by  the  fact 
that  the  incorporators  are  members  of  the  state  hostile  to 
the  one  that  has  incorporated  them  than  by  any  other. 

Right  of  alien  enemy  to  sue. — It  has  been  the  general 
rule  in  Anglo-American  courts  that  an  alien  enemy  has 
no  right  to  sue  during  the  cessation  of  commercial  inter- 
course; but,  even  before  Justice  Story's  time,  the  plea  of 
alien  enemy  was  not  favorably  received,35  and  it  was  held 
to  be  necessary  to  set  forth  in  the  plea  every  fact  that 
would  negative  the  plaintiff's  right  to  sue.  The  Supreme 
Court  of  the  United  States  has  also  held  that,  "whatever 
may  be  that  extent  of  the  disability  of  an  alien  enemy 
to  sue  in  the  courts  of  a  hostile  country,  it  is  clear  that 
he  is  liable  to  be  sued,  and  this  carries  with  it  the  right 
to  use  all  the  means  and  appliances  of  defense."36 

32  New  York  Life  Ins.  Co.  v.  Stathem,  93  U.  S.,  24. 

33  Nigel  Gold  Mining  Co.,  Ltd.,  v.  Hoade,  2  K.  B.    (1901).  849. 

34  Driefontein,  etc.,  Mines,  Ltd.,  v.  Janson    (1901),  2  K.  B.,  419. 

35  The  Society,  etc.,  v.  Wheeler,  2  Gallison,  127. 
so  McVeigh  v.  United  States,  11  Wallace,  267. 

14 


210  COMMENCEMENT  OF   WAR. 

The  effect  of  the  disability  to  sue  has  been  that  the 
alien's  remedy  has  been  for  the  time  suspended,  not  that 
his  right  has  been  extinguished.  There  are  cases  in  the 
United  States  that  hold  that  interest  accruing  during  war 
cannot  be  collected  afterwards,37  but  the  better  opinion, 
even  before  The  Hague  Convention,  would  appear  to  have 
been  that  of  Lord  Erskine,  in  a  bankruptcy  proceeding  in 
1806,  in  which  he  held  that  the  dividend  due  an  alien  en- 
emy should  be  reserved  for  him,  as  it  was  only  the  right 
to  recover  which  had  been  suspended.38  Judgments  gained 
before  the  war,  but  not  executed  can  be  enforced  after- 
wards; and,  as  a  general  rule,  the  running  of  statutes  of 
limitation  has  been  suspended  during  war.39 

Apparent  change  in  law. — The  law  on  this  subject,  how- 
ever, appears  to  have  been  vitally  changed  by  H  XXIII  (h). 
A  fair  interpretation  of  that  provision  seems  to  do  away 
with  the  plea  of  alien  enemy.  If  it  does,  and  aliens  are 
allowed  to  sue  during  war,  then  there  is  no  longer  reason 
for  the  general  suspension  of  the  statutes  of  limitations. 

Where  commercial  intercourse  is  allowed. — The  disability 
to  sue  and  make  contracts  must  be  understood  to  exist 
only  when  commerce  is  not  allowed.  So  far  as  commerce 
is  allowed,  contracts  may  be  made  and  enforced. 

Miscellaneous  rules. — In  prize  proceedings,  even  more 
than  in  ordinary  proceedings,  the  rule  that  ignorance  of 
the  law  excuses  no  one  prevails.  It  is  the  ulterior  desti- 
nation of  goods  that  counts  at  least  in  trading  with  the 
enemy,  even  if  the  route  be  through  a  neutral  country. 
The  liability  to  confiscation  for  illegal  trading  lasts  till 
the  end  of  the  voyage  and  then  terminates.40  Military 
Occupation  in  itself  does  not  legalize  intercourse  with  ter- 
ritory, traffic  with  which  has  been  prohibited.41 

Licenses  now  generally  obsolete  or  local. — Exceptions 
to  the  interdiction  of  trade  have  in  recent  times  usually 
been  general  in  their  application;  but,  in  the  peculiar  cir- 
cumstances of  the  Napoleonic  Wars,  Great  Britain  made 
extensive  use  of  special  licenses,  16,000  of  them  being  is- 

37  See  note  in  Scott's  Cases  on  International  La\v>  p.  500. 

33  Ex  parte  Boussmaker,  13  Vesey  Jun.,  71. 

ss  Hanger  v.  Abbott,   G  Wall.,  532. 

•ioHalleck's   International    Law,   Vol.   II,   pp.    132-133. 

4i  Hamilton  v.   Dillin,   21   Wallace,   95. 


LICENSES.  211 

sued  in  the  years  1808  and  1809,  and  8,000  in  1811.42  A 
great  body  of  law  was  developed  with  regard  to  them. 

Rules  as  to  licenses. — "A  license  is  a  kind  of  safe-con- 
duct, granted  by  a  belligerent  State  to  its  own  subjects, 
to  those  of  its  enemy,  or  to  neutrals,  to  carry  on  a  trade 
which  is  interdicted  by  the  laws  of  war  and  it  operates 
as  a  dispensation  from  the  penalties  of  those  laws,  with 
respect  to  the  State  granting  it,  and  so  far  as  its  terms 
can  be  fairly  construed  to  extend.  The  officers  and  tri- 
bunals of  the  State  under  whose  authority  they  are  issued 
are  bound  to  respect  such  documents  as  lawful  relaxations 
of  the  ordinary  state  of  war;  but  the  adverse  belligerent 
may  justly  consider  them  as  per  se  a  ground  of  capture  and 
confiscation.  Licenses  are  necessarily  stricti  juris,  and  can- 
not be  carried  beyond  the  evident  intention  of  those  by 
whom  they  are  granted;  nevertheless,  they  are  not  con- 
strued with  pedantic  accuracy,  nor  will  their  fair  effect 
be  vitiated  by  every  slight  deviation  from  their  terms 
and  conditions.  Much,  however,  will  depend  upon  the 
nature  of  the  terms  which  are  not  complied  with.  Thus 
a  variation  in  the  quality  or  character  of  the  goods  will  often 
lead  to  more  dangerous  consequences  than  an  excess  of 
quantity.  Again,  a  license  to  trade,  though  safe  in  the 
hands  of  one  person,  might  become  dangerous  in  those  of 
another;  so  also  with  respect  to  the  limitations  of  time 
and  place  specified  in  a  license.  Such  restrictions  are  often 
of  material  importance,  and  cannot  be  deviated  from  with 
safety.  A  license  may  be  qualified,  in  which  the  party 
seeking  to  protect  himself  under  it  must  conform  exactly 
to  its  requisitions."43 

This  passage  from  Halleck  indicates  the  nature  of  the 
questions  which  arose  in  connection  with  licenses,  but  into 
which  it  would  be  useless  to  enter  in  detail  now. 

42  Calvo,  Le  Droit  International,  4,  91. 

43  Halleck,  Inter.  Law,  II,  343-344. 


212  ENEMY    CHARACTER   AND    PROPERTY. 


CHAPTER  II. 

ENEMY  CHARACTER  AND  PROPERTY. 

Neutral  property  identified  with  the  country  is  subject 
to  the  same  liabilities  as  that  belonging  to  citizens  of  the 
country. — In  providing  for  the  needs  of  an  army  in  a  for- 
eign country,  it  makes  little  difference  whether  the  sup- 
plies taken  are  owned  by  persons  owing  allegiance  to  the 
enemy  or  to  a  neutral  power.  As  Feraud-Giraud  says,  a 
commander  under  the  necessity  of  providing  for  his  army 
cannot  stop  to  argue  the  question  as  to  whether  provisions 
which  he  chances  to  need  belong  to  enemies  or  neutrals.1 
"Where  the  provisions  are  in  course  of  transportation,  and 
the  neutral  character  of  their  owner  is  apparent  on  the 
face  of  it,  only  extreme  necessity  can  warrant  their  seizure ; 
but  when  such  indications  do  not  exist  the  commander  is 
justified  in  treating  those  who  have  identified  themselves 
with  the  country  in  the  same  way  in  this  respect  as  those 
who  have  entered  into  the  closer  relation  of  political  alle- 
giance. Requisitions  and  Contributions  are  assessed  to 
the  former  to  the  same  extent  as  to  the  latter,  and  so  long 
as  the  belligerent  does  not  exceed  the  rights  which  the 
laws  of  war  give  him  with  regard  to  the  latter  and  treats 
both  alike,  the  neutral  government  has  no  grounds  for 
complaint. 

Treatment  of  neutral  railway  material. — The  treatment 
of  neutral  railway  material  is  provided  for  by  Article  XIX 
of  the  Convention  respecting  the  rights  and  duties  of  neu- 
tral powers  and  persons  in  case  of  war  on  land,  as  follows : 

Railway  material  coming  from  the  territory  of  neutral  Pow- 
ers, whether  it  be  the  property  of  the  said  Powers  or  of  Com- 
panies or  private  persons,  and  recognizable  as  such,  shall  not 
be  requisitioned  or  utilized  by  a  belligerent,  except  where  and 
to  the  extent  that  it  is  absolutely  necessary.  It  shall  be  sent 
bach  as  soon  as  possible  to  the  country  of  origin. 

A  neutral  Power  may  likewise,  in  case  of  necessity,  retain  and 

i  Ferauri-Giraiul,  Recours   a  Raison   des   Dommages,   Causes   par  la 
Guerre,  p.  278. 


NEUTRAL  RESIDENTS.  213 

utilize  to  an  equal  extent  material  coming  from  the  territory 
of  the  belligerent  Power. 

Compensation  shall  be  paid  by  one  party  or  the  other  in  pro~ 
portion  to  the  material  used,  and  to  the  period  of  usage. 

Right  of  angary. — The  second  paragraph  giving  the  neu- 
tral power  a  right  similar  to  that  of  the  belligerents  is 
new.  The  rest  of  the  article  is  a  combination  of  Article 
LIV  of  the  original  Hague  Regulations,  and  of  the  prin- 
ciple identified  with  the  right  of  angary  that  the  invader 
can  seize  neutral  property  distinguishable  as  such,  and  not 
identified  with  the  country,  only  under  pressing  necessity, 
and  that  then  compensation  must  be  made. 

Liability  of  neutrals  domiciled  in  a  belligerent  country 
to  military  service. — In  the  same  way  the  country  in  which 
the  neutral  has  settled  may  require  of  him  all  the  pecuniary 
support  which  it  may  exact  of  its  own  citizens,  and  may 
also  require  of  him  aid  in  suppressing  local  disorder,  as 
no  more  than  a  fair  return  for  the  protection  he  has  en- 
joyed. That  the  belligerent  may  go  beyond  this,  and  may 
require  aid  of  domiciled  foreigners  in  repelling  invasion, 
was  claimed  by  the  Confederate  Government  during  the 
Civil  War  and  was  not  denied  by  the  British  Government, 
although  the  latter  claimed  that  this  principle  was  not  to 
be  applied  to  the  case  of  a  civil  war,  the  participants  in 
which  were  liable  to  be  treated  as  rebels,  and  that  in  any 
event  time  should  be  allowed,  after  the  passage  of  the 
act,  for  those  who  desired  to  do  so,  to  leave  the  country. 
The  drafting  of  domiciled  aliens  for  service  in  foreign 
wars  would  certainly  seem  harsh;  but  it  does  not  appear 
to  be  unreasonable  to  hold  that  those  who  have  perma- 
nently taken  up  their  abode  in  a  country  should  bear  their 
part  in  repelling  invasion  or  in  preserving  the  integrity 
of  the  nation,  at  least  after  due  notice  has  been  given  and 
especially  after  those  who  have  come  merely  for  purposes 
of  foreign  trade  have  had  a  chance  to  leave.2 

Attempt  to  place  the  neutral  in  a  more  favored  position 
at  the  Second  Peace  Conference. — The  attempt  was  made*! 
at  the  Second  Peace  Conference  to  place  the  neutral  re- 
siding  in   the   territory   of   one   of   the   belligerents,   in   a 

2  See  correspondence  as  to  drafting  British  subjects  domiciled  in 
the  South  during  the  Civil  War,  Pari.  Papers,  1864,  Vol.  62,  North 
Amer.  No.  13,  p.  24. 


214  ENEMY    CHARACTER    AND    PROPERTY. 

more  favored  position  than  above  indicated,  but  the  only 
result  of  that  attempt  was  the  adoption  of  Article  XVI  of 
the  Convention  with  regard  to  the  rights  and  duties  of 
neutrals  on  land  to  the  effect  "that  the  nationals  of  a  State 
which  is  not  taking  part  in  the  war  are  considered  as  neu- 
trals." Without  the  articles  to  which  it  was  to  serve  as 
an  introduction,  it  leaves  the  law  unchanged.3  The  at- 
titude of  the  United  States  in  this  matter  can  be  seen 
from  the  following,  extracted  from  the  report  of  General 
Davis,  and  included  in  the  report  of  the  American  Dele- 
gation : 

"It  has  been  seen  that  both  the  committee  and  the  Con- 
ference finally  rejected  a  proposition  which  had  been  pre- 
pared with  a  view  to  minimize  the  effects  of  war  upon 
neutral  commerce  and  in  conformity  with  the  tendencies 
of  modern  industry  and  trade,  which  demand  for  their 
development  and  maintenance  the  widest  markets,  and 
which  are  in  the  highest  degree  sensitive  to  the  disturbing 
effects  of  war. 

"The  German  proposition,  by  protecting  stocks  of  goods 
in  the  hands  of  neutral  agents  in  belligerent  territory  from 
seizure  or  requisition,  was  calculated  to  give  to  neutral 
undertakings  the  broadest  immunity  from  belligerent  in- 
terference by  restricting  the  burdens  and  operations  of 
war  to  the  belligerent  States  and  their  subjects.  But  the 
proposition  so  conceived  and  submitted  was  dismissed  with 
the  following  expression  of  desire,  which  may  be  accepted 
as  showing  the  importance  which  is  attached  to  the  devel- 
opment of  modern  industry  and  commerce  by  a  majority 
of  the  Governments  of  the  civilized  world : 

"The  Conference  expresses  the  hope: 

"I.  That  in  case  of  war  the  competent  authorities,  civil 
and  military,  should  make  it  their  special  duty  to  assure 
and  protect  the  commercial  and  industrial  relations  be- 
tween the  belligerent  Powers  and  neutral  States. 

;'II.  That  the  high  (signatory)  Powers  should  seek  to 
establish  in  agreements  with  each  other  uniform  contract- 
Ural  undertakings  determining  in  respect  to  military  bur- 
dens, the  relations  of  each  State  in  respect  to  the  strangers 
established  in  its  territory."4 

3  See  Westlake,  II  International  Law,  28G. 

4  Report  of  the  American  Delegation,  p.  58. 


COMMERCIAL  DOMICIL.  215 

Enemy  character. — Private  property  at  sea  belonging  to 
the  enemy  or  invested  with  enemy  character  is  still  con- 
fiscable. In  determining  who  are  enemies,  France,  and  the 
continent  of  Europe  in  general,  has  followed  the  simple 
rule  of  considering  as  enemies  all  those  who  owe  allegiance 
to  the  enemy  power.  At  first  blush  this  would  seem  to 
be  the  natural  rule,  but  as  it  is  the  enemy's  commerce 
that  is  to  be  struck  at,  and  not  his  person,  the  more  prac- 
tical rule  for  this  purpose  would  appear  to  be  to  treat  as. 
enemies  all  those  who  carry  on  enemy  commerce,  or,  in 
other  words,  all  those  whose  commercial  domicil  is  in  the 
enemy's  country.  This  is  the  rule  followed  by  the  courts 
of  Great  Britain  and  the. United  States. 

Commercial  domicil. — Commercial  domicil  is  acquired  by 
taking  up  residence  in  a  country  with  the  intention  of  en- 
gaging in  business  there  permanently!"*)  In  determining 
whether  it  has  been  acquired,  a  great  variety  of  circum- 
stances must  be  considered,  such  as  the  presence  of  the 
family,  the  ownership  of  real  estate,  the  payment  of  taxes 
and  the  enjoyment  of  political,  rights ;  but  the  most  im- 
portant are  the  nature  of  the  business  and  the  time  dur- 
ing which  it  has  been  carried  on.  Entering  on  a  business 
permanent  in  its  nature,  is  sufficient  to  constitute  domicil" 
immediately;  and  although  the  original  purpose  of  the  resi- 
dence be  to  collect  debts  or  to  manage  a  particular  under- 
taking, a  long  continued  stay  is  sufficient  to  outweigh  the 
original  purpose.  But  the  domicil  of  origin  easily  reverts. 
Whenever  the  intention  to  remain  is  changed  and  is  shown 
by  facts  which  amount  in  good  faith  to  a  putting  in  mo- 
tion to  return  to  the  country  of  origin,  the  domicil  of  origin 
revives   even  before  departure  from  the   country. 

Property  of  citizens  domiciled  in  the  enemy's  country 
at  the  outbreak  of  war. — In  the  case  of  The  Venus5  it  was 
held  by  the  United  States  Supreme  Court,  by  a  vote  of 
three  to  two,  that  the  property  of  an  American  citizen, 
domiciled  in  Great  Britain  before  the  outbreak  of  war, 
which  was  shipped  before  the  beginning  of  hostilities,  was 
subject  to  confiscation,  notwithstanding  that  previous  to 
the  decision,  and  within  a  reasonable  time  after  the  out- 
break of  war,  although  after  the  capture,  the  owner  put 
himself  in  motion  to  return  to  his  country.     Chief  Justice 

5  8  Cranch,  253. 


216  ENEMY    CHARACTER    AND    PROPERTY. 

Marshall,  however,  in  a  vigorous  dissenting  opinion,  main- 
tained that  a  person  in  such  a  situation  should  not  be 
presumed  to  have  intended  to  continue  in  the  enemy's  coun- 
try, and  that  his  property  should  not  be  confiscated  until 
he  had  had  a  fair  opportunity  to  leave  the  country.  This 
opinion,  which  seems  not  only  to  have  been  the  more  rea- 
sonable one,  but  the  one  with  the  greater  weight  of  au- 
thority behind  it,  was  expressly  approved  in  a  decision  of 
the  King's  Beach,  in  1901,  in  a  case  growing  out  of  the 
South  African  War,  in  which  it  was  held  that  the  prop- 
erty of  a  Transvaal  corporation,  seized  at  the  outbreak  of 
the  war  by  the  Transvaal  Government,  should  not  be  con- 
sidered enemy  property,  as  the  corporation,  which  had 
originated  in  Natal  and  was  still  incorporated  there  and 
essentially  British,  was  not  to  be  presumed  to  intend  to 
continue  its  operations  in  the  Transvaal  during  the  war.6 

Houses  of  trade. — Commerce  carried  on  through  houses 
of  trade  established  in  the  enemy's  country,  or  by  means 
of  special  privileges,  such  as  monopoly  and  incorporation, 
is  affected  with  the  hostile  character,  although,  as  just  no- 
ticed, the  British  courts  have  shown  a  tendency  to  look 
behind  the  corporation,  to  the  nationality  of  its  members, 
when  it  has  suffered  from  the  hostile  action  of  the  gov- 
ernment under  which  it  is  incorporated.  The  establishment 
of  a  mere  agency  in  the  enemy's  country,  however,  has  not 
this  effect.  On  the  other  hand,  the  commerce  carried  on 
by  a  person  domiciled  in  the  enemy  country,  no  matter 
where  it  may  be,  is  affected  with  his  enemy  character,  as 
is  also  the  interest  he  may  hold  in  a  partnership  established 
in  a  neutral  country.  Where  a  man's  time  is  so  divided 
between  different  countries  that  none  of  them  can  be  said 
to  be  his  commercial  domicil  rather  than  another,  only  the 
commerce  carried  on  by  the  house  in  the  enemy  country 
is  considered  hostile. 

Enemy  character  of  the  products  of  the  enemy's  soil  and 
of  the  ships  flying  his  flag". — The  soil  of  the  country  is  so 
intimately  related  to  the  country  itself  that  its  produce, 
while  in  the  hands  of  the  original  owner,  is  affected  with 
its  hostile  character,  although  the  owner  of  the  soil  may 
himself  be  neutral.  Military  or  civil  service  in  a  foreign 
country,  or  habitual  employment  in  its  merchant  marine, 

e  Nigel  Gold  Mining  Co.,  Ltd.,  v.  Hoade,  2  K.  B.  (1901),  849. 


PROPERTY  IN  TRANSITU.  217 

also  imparts  the  national  character  of  that  country  during 
the  service  or  employment.  The  enemy  character  of  the 
owner  is  imparted  to  ships  as  to  other  property,  and  the 
use  of  the  nag  or  the  pass  of  the  enemy,  or  the. engaging  in 
his  trade,  also  affects  them  with  that  character,  although 
in  France  the  presumption  that  a  ship  sailing  under  the 
flag  and  pass  of  an  enemy  is  an  enemy  ship  may  be  over- 
come by  proof  of  its  neutral  ownership.7 

Transfer  of  property  in  transitu. — In  general,  commerce 
between  a  belligerent  and  a  neutral  may  be  carried  on  in 
time  of  war  as  in  time  of  peace,  but  the  likelihood  of  the 
belligerent  endeavoring  to  protect  his  commerce  under  the 
guise  of  neutrality  has  given  rise  to  certain  rules  in  the 
British  and  American  courts  as  to  the  ownership  of  prop- 
erty in  transitu  not  applicable  in  time  of  peace.  One  of 
these  is  that  transfers  of  property  in  transitu  during  war 
are  invalid.  In  the  Sorensen  cases  the  Privy  Council  de- 
clared the  reason  of  this  to  be  that  mere  paper  transfers 
of  property  in  transitu,  without  delivery,  were  too  liable 
to  be  colorable  in  time  of  war  to  be  recognized.  Where, 
however,  delivery  is  possible  before  the  termination  of  the 
voyage,  the  Privy  Council  held  that  the  rule  did  not  ap- 
ply, and  that  the  transfer  might  be  perfected  on  delivery.8 
The  rule  as  to  the  nontransferability  of  property  in  transitu 
in  time  of  war  does  not  extend  to  transfers  made  imme- 
diately before  the  outbreak  of  war,  without  the  intent  to 
avoid  belligerent  capture. 

Ownership  of  consigned  goods  and  nonrecognition  of 
liens. — It  is  also  held  that,  although  in  time  of  peace  there 
may  be  a  special  agreement  that  goods  sent  in  fulfillment 
of  an  order,  which  ordinarily  vest  in  the  consignee  on  de- 
livery to  the  common  carrier,  shall  become  the  property  of 
the  consignee  only  on  delivery  to  him,  no  such  agreement 
can  be  set  up  in  time  of  war  as  to  goods  sent  by  a  neutral 
consignor  to  an  enemy  consignee  since  such  agreements 
would  be  used  to  exempt  large  amounts  of  property  other- 
wise liable  to  capture.  On  the  other  hand,  if  an  enemy 
consignor  retains  any  right  in  goods  sent  to  a  neutral  con- 
signee beyond  that  of  stopping  them  in  case  of  the  in- 
solvency of  the  consignee,  the  goods  are  still  considered 

7  Rivier,  Principes  du  Droit  des  Gens,  II,  343. 

8  11  Moore's  Privy  Council  Caaes,  146. 


218  ENEMY    CHARACTER   AND    PROPERTY. 

enemy  goods.  So,  liens  on  ships  or  cargoes,  such  as  mort- 
gages, factors'  liens,  and  bottomry  loans,  which  do  not 
attach,  as  freight  does,  from  the  fact  of  carriage  itself,  are 
necessarily  overriden  by  the  capture  of  the  goods  since 
otherwise  condemnation  proceedings  would  be  so  compli- 
cated and  open  to  fraud  as  to  be  almost  hopeless. 

Transfers  of  ships  during1  war. — The  transfer  of  enemy 
ships  to  neutrals  in  time  of  war  is  allowed,  but  as  such 
transfers  may  be  only  colorable,  they  are  viewed  with 
suspicion,  and  the  reservation  of  any  enemy  interest  inval- 
idates them.  By  the  old  French  rule,  all  transfers  durante 
hello  were  invalid,  but  this  rule  was  abandoned  during 
the  Franco-German  War  and  is  apparently  no  longer  the 
law.9 

Conquest  by  the  enemy  confers  enemy  character  on  the 
inhabitants  of  the  conquered  territory. — In  the  case  of 
Thirty  Hogsheads  of  Sugar  v.  Boyle,  Chief  Justice  Marshall 
held  that,  "although  acquisitions  made  during  war  are  not 
considered  as  permanent  until  confirmed  by  treaty,  yet  to 
every  commercial  and  belligerent  purpose  they  are  consid- 
ered as  a  part  of  the  domain  of  the  conqueror,  so  long  as 
he  retains  the  possession  and  government  of  them.  The 
island  of  Santa  Cruz,  after  its  capitulation,  remained  a 
British  island  until  it  was  restored  to  Denmark."10  In 
other  words,  he  held  that  for  belligerent  purposes,  Santa 
Cruz  had  the  national  character  of  the  conqueror.  Conquest 
by  the  British  hajd  made  the  inhabitants  enemies,  and  the 
soil  enemy  soil.  ^It  must  not  be  lost  sight  of,  however,  that 
the  conquest  which  effects  such  a  change  can  now  only  take 
place  on  the  conclusion  of  hostilities7)and  that  consequently 
the  decision  in  the  case  would  probably  be  different  today. 
Just  how  the  inhabitants  of  occupied  territory  shall  be  re- 
garded is  for  the  determination  of  the  political  authorities. 
That  enemy  character,  even  for  purposes  of  maritime  cap- 
ture, does  not  result  from  military  occupation,  as  distin- 
guished from  conquest,  was  early  laid  down  by  Lord  Sto- 
well,11  was  affirmed  by  the  Privy  Council  in  the  case  of 
The  Gerasimo,12  growing  out  of  the  Crimean  War,  and  is 

8  Rivier,  Principes  du  Droit  des  Gens,  II,  415. 

io  9  Cranch,  19.~>. 

ii  The  Santa  Anna,  1  Edwards,  182. 

12  11  Moore's  Privy  Council  Cases,  88, 


DE  FACTO  POSSESSION.  219 

so  completely  in  line  with  modern  theory  as  to  be  appa- 
rently beyond  serious  attack. 

Character  of  territory  in  de  facto  possession  of  other  bel- 
ligerent.— Where  one  of  the  belligerents  holds  de  facto  pos- 
session of  territory,  without  having  the  legal  title  to  it,  it 
is  for  the  political  authorities  of  the  other  belligerent  to 
decide  whether  such  territory  shall  be  included  in  hostile 
measures,  and  whether  the  inhabitants  shall  be  treated  as 
enemies.  This  situation  arises  not  only  in  cases  of  mili- 
tary occupation  proper,  but  also  in  cases  of  practically 
permanent  occupation,  such  as  that  of  Bosnia  and  Herzig- 
ovina  by  Austria  and  that  of  Egypt  by  England.  In  such 
cases  it  is  fact,  not  fiction,  that  should  be  regarded,  and, 
if  the  titular  sovereign  is  only  nominally  such,  his  neutrality 
should  be  respected,  while  against  the  de  facto  power  it  is 
permissible  to  take  any  such  action  as  would  be  justified 
against  a  sovereign  who  is  sovereign  in  name  as  well  as  in 
fact.13 

Personal  unions.-VA  war  undertaken  by  one  of  the  states 
connected  by  a  personal  union  does  not  involve  the  other 
state.  /Where,  however,  the  common  ruler  is  not  subject 
to  constitutional  limitations,  or  exercises  a  predominating 
influence  in  the  government  in  the  country  not  engaged  in 
the  war,  his  actions  are  liable  to  be  viewed  with  suspicion, 
and  may  be  considered  a  justifiable  cause  of  war  against 
that  country  when  similar  action  on  the  part  of  the  ruler 
of  an  ordinary  neutral  country  would  not  be.  The  neu- 
trality of  states  in  a  personal  union  has  generally  been  re- 
spected, although  Napoleon  seems  to  have  violated  it  in  his 
conduct  towards  Hanover,  which  was  then  in  personal  un- 
ion with  Great  Britain.14 

Allies. — At  the  outbreak  of  war,  an  ally  of  the  enemy 
may  be  so  closely  associated  with  him  that  it  will  be  justi- 
fiable to  treat  them  as  one.  <Qsually,  however,  the  alliance 
is  more  or  less  restricted,  so  that  the  ally  must  judge 
whether  the  case  in  hand  comes  within  the  terms  of  the 
treaty.  >In  such  a  case  fairness  as  well  as  policy  would  or- 
dinarily dictate  that  the  ally  should  not  be  attacked  before 
he  has  had  opportunity  for  decision.''  Thus,  in  the  case  of 
purely  defensive  alliances  the  mere  fact  that  one  of  the 

"Hall's  Inter.  Law,  pp.  530-532. 
I*  Hall's  Inter.  Law,  pp.  532-534. 


220  ENEMY    CHARACTER    AND    PROPERTY. 

belligerents  is  attacked  first  does  not  necessarily  indicate 
that  the  war  on  his  part  is  defensive,  for  the  offensive  op- 
erations may  have  been  in  reality  merely  the  most  efficient 
means  of  defense.  The  ally  must  judge  for  himself  in  each 
case  whether  there  is  really  a  casus  foederis.  It  has  been 
sometimes  said  that  the  party  to  an  alliance  is  not  bound 
thereby,  if  the  war  on  which  his  ally  enters  is  not  a  just 
one ;  but  modern  opinion  generally  considers  that  third 
parties  are  not  in  a  position  to  judge  of  the  justice  of  the 
wars  of  others,  and  the  refusal  to  carry  out  the  terms  of 
an  alliance  on  that  account  would  be  regarded  as  a  mere 
attempt  to  evade  the  obligations  of  the  treaty.  In  both 
personal  unions  and  alliances,  then,  the  question  of  the 
enemy  character  of  the  state  is  one  for  the  political  au- 
thorities and  not  for  the  courts.  It  is  not  for  the  latter 
to  say  that,  by  the  mere  fact  of  war,  the  subjects  of  either 
have  become  enemies,  or  that  their  property  is  liable  to  con- 
fiscation as  enemy  property. 

Importance  of  old  prize  rules  lessened  by  modern  con- 
ditions of  transportation,  business  and  law. — These  rules 
as  to  enemy  character  have  not  the  importance  they  once 
had,  as  conditions  of  transportation,  of  business  and  of  law 
have  vitally  changed  since  the  time  when  most  of  them 
were  elaborated  at  the  beginning  of  the  last  century.  The 
steamship  has  largely  taken  the  place  of  the  sailing  vessel, 
business  is  coming  more  and  more  into  the  hands  of  cor- 
porations, and,  what  is  still  more  important,  enemy  goods 
in  neutral  bottoms  are  no  longer  subject  to  confiscation. 
The  tendency  is  to  drive  the  commerce  of  belligerents  into 
neutral  ships  and  to  drive  the  merchant  marine  of  bel- 
ligerents off  the  sea  entirely.  Accordingly,  there  will  be 
much  less  use  for  these  rules  in  the  future  than  there  has 
been  in  the  past,  even  though  private  property  at  sea  con- 
tinues to  be  subject  to  capture. 

Exemptions  from  right  of  capture  on  high  seas. — Certain 
restrictions  with  regard  to  the  exercise  of  the  right  of  cap- 
ture in  naval  war,  were  embodied  in  the  following  conven- 
tion at  the  Second  Peace  Conference. 

Recognizing  the  necessity  of  more  effectively  ensuring 
than  hitherto  the  equitable  application  of  law  to  the  inter- 
national relations  of  maritime  Powers  in  time  of  war; 

Considering  that,   for  this  purpose,   it  is   expedient,   in 


EXEMPTIONS  FROM  CAPTURE.  221 

giving  up  or,  if  necessary,  in  harmonizing  for  the  common 
interest  certain  conflicting  practices  of  long  standing,  to 
commence  codifying  in  regulations  of  general  application 
the  guarantees  due  to  peaceful  commerce  and  legitimate 
business,  as  well  as  the  conduct  of  hostilities  by  sea;  that 
it  is  expedient  to  lay  down  in  written  mutual  engagements 
the  principles  which  have  hitherto  remained  in  the  uncer- 
tain domain  of  controversy,  or  have  been  left  to  the  dis- 
cretion of  Governments; 

That,  from  henceforth,  a  certain  number  of  rules  may 
be  made,  without  affecting  the  common  law  now  in  force 
with  regard  to  matters  which  that  law  has  left  unsettled; 
[the  Plenipotentiaries  of  the  Contracting  Powers]  have 
agreed   upon   the   following  provisions: 

POSTAL    CORRESPONDENCE. 

Art.  I.     The  postal  correspondence  of  neutrals  or  belliger- 
ents, whatever  its  official  or  private  character  may  be,  found 
on  the  high  seas  on  board  a  neutral  or  enemy  ship  is  inviolable 
If  the  ship  is  detained,  the  correspondence  is  forwarded  by  the 
captor  with  the  least  possible  delay. 

The  provisions  of  the  preceding  paragraph  do  not  apply,  in 
case  of  violation  of  blockade,  to  correspondence  destined  for  or 
proceeding  from  a  blockaded  port. 

Art.  II.  The  inviolability  of  postal  correspondence  does  not 
exempt  a  neutral  mail  ship  from  the  laws  and  customs  of  mari- 
time war  as  to  neutral  merchant  ships  in  general.  The  ship, 
however,  may  not  be  searched  except  when  absolutely  necessary, 
and  then  only  with  as  much  consideration  and  expedition  as  pos- 
sible. 

Mails. — This  was  the  practice  followed  with  regard  to 
neutral  mail  during  the  Civil  "War.  It  is  here  extended 
to  the  correspondence  of  belligerents  as  well. 

THE    EXEMPTION    FROM    CAPTURE    OF    CERTAIN   VESSELS. 

Art.  III.  Vessels  used  exclusively  for  fishing  along  the  coast 
or  small  boats  employed  in  local  trade  are  exempt  from  capture, 
as  well  as  their  appliances,  rigging,  tackle  and  cargo. 

They  cease  to  be  exempt  as  soon  as  they  take  any  part  what- 
ever in  hostilities. 

The  Contracting  Powers  agree  not  to  take  advantage  of  the 
harmless  character  of  the  said  vessels  in  order  to  use  them  for 
military  purposes  while  preserving  their  peaceful  appearance. 


222  ENEMY    CHARACTER    AND    PROPERTY. 

Art.  IV.  Vessels  charged  with  religious,  scientific  or  philan- 
thropic missions  are  likewise  exempt  from  capture. 

Vessels  in  the  habit  of  bringing  in  fresh  fish. — It  was 
evidently  the  intention  to  embody  in  the  convention  the 
rule  of  law  laid  down  in  the  cases  of  The  Paquete  Ilabana 
and  The  Lola.15  The  criterion  for  the  exemption  there  laid 
down  that  the  vessels  should  be  in  the  habit  of  bringing  in 
fresh  fish  is  doubtless  applicable  here  also.  The  Lola  had 
proceeded  to  Yucatan,  fished  there  eight  days  and  started 
back  with  a  cargo  of  about  10,000  pounds  of  live  fish,  but 
was  held  by  the  Supreme  Court  to  come  within  the  ex- 
emption.16 The  provision  with  regard  to  small  boats  em- 
ployed in  local  trade  is  new.  The  exemption  specified  in 
both  these  articles  is  exemption  from  capture  because  of 
enemy  character,  and  is  conditioned  not  only  on  absten- 
tion from  hostilities,  but  on  compliance  with  such  military 
measures  as  blockades,  when  the  latter  are  applicable. 

REGULATIONS  REGARDING  THE  CREWS  OF  ENEMY  MERCHANT 
SHIPS    CAPTURED    BY    A    BELLIGERENT. 

Art.  V.  When  an  enemy  merchant  ship  is  captured  by  a  bel- 
ligerent, such  of  its  crew  as  are  nationals  of  a  neutral  State  are 
not  made  prisoners  of  war. 

The  same  rule  applies  in  the  case  of  the  captain  and  officers 
likewise  nationals  of  a  neutral  State,  if  they  promise  formally 
in  writing  not  to  serve  on  an  enemy  ship  while  the  war  lasts. 

Art.  VI.  The  cavtain,  officers  and  members  of  the  crew, 
irlicn  nationals  of  the  enemy  State,  are  not  made  prisoners  of 
ivar,  on  condition  that  they  make  a  formal  promise  in  writing 
not  to  undertake,  while  hostilities  last,  any  service  connected 
with  the  operations  of  the  war. 

Art.  VII.  The  names  of  the  persons  retaining  their  liberty 
under  the  conditions  laid  down  in  Article  V,'  paragraph  2,  and 
in  Article  VI,  are  notified  by  the  belligerent  captor  to  the  other 
belligerent.  The  latter  is  forbidden  knowingly  to  employ  the 
said  persons. 

Art.  VIII.  The  provisions  of  the  three  preceding  Articles 
do  not  apply  to  ships  taking  part  in  the  hostilities. 

The  mere  fact  of  taking  service  on  board  an  enemy  ship 

is  175  U.  S..  677. 

i0  See  also  Westlake,  II  International  Law,  133. 


THE  VESTING  OF  TITLE.  223 

affects  the  neutral  to  some  degree  with  the  nationality  of 
the  ship,  and  so  in  the  past  has  made  him  liable  to  capture 
along  with  the  nationals  of  the  enemy  on  board,  but  there 
has  been  considerable  controversy  in  the  past  as  to  the 
rights  of  a  belligerent  over  the  crew  of  a  merchantman, 
and  this  Convention  puts  an  end  to  that  controversy. 

Exemption  of  personal  effects. — One  case  of  exemption 
of  enemy  property  at  sea  not  included  in  the  convention, 
but  referred  to  by  Westlake  is  that  of  the  personal  effects 
of  the  captain  and  crew  of  a  captured  vessel,  and  possibly 
of  the  passengers  as  well.  He  says  that  the  same  favor 
has  also  been  extended  to  the  small  adventures  which  it 
has  been  customary  to  allow  captains  to  make  on  their  own 
account.17  Ship-wrecked  vessels  are  sometimes  considered 
to  be  exempt  from  capture,  but  the  rule  is  one  of  chivalry  / 
or  courtesy  rather  than  of  law. 

Old  rules  as  to  when  the  title  to  captured  property  was 
lost. — It  has  always  been  a  much-mooted  question  as  to 
just  what  is  necessary  to  divest  the  title  of  the  old  owner 
of  a  captured  vessel  so  effectually  that  on  its  recapture  it 
does  not  return  to  him,  but  becomes  the  property  of  the 
recaptor.  The  old  rule  here,  as  with  territory,  was  thatl  " 
firm  possession  was  necessary  to  give  good  title,  and  the 
technical  test  of  firm  possession  was  the  bringing  of  the 
captured  vessel  within  a  place  of  safety,  such  as  a  port 
or  the  vicinity  of  a  fleet,  or  possession  for  twenty-four  hours. 
The  former  rule  was  embodied  in  the  Consolato  del  Mare 
and  prevailed  until  in  the  seventeenth  century,  the  latter 
rule  threatened  to  displace  it.  Both  are  now  practically 
obsolete,  although  the  rule  of  intra  praesidia  is  embodied 
in  the  Prussian  Code.18 

The  new  rule  requiring  the  condemnation  of  a  prize  court. 
— The  definite   incorporation   of  a  new   doctrine   into  thej 
English  law  dates  from   1758,   when  Lord   Mansfield   em-j 
bodied  in  a  decision10  the  principle  that  to  perfect  the  title 
of  the  captor  not  only  firm  possession  is  necessary,  but  con- 
demnation by  a  prize  court.     This  doctrine  was  approved 

«  II  International  Law,   133. 

is  Rivier,  Principes  du  Droit  des  Gens,  II,  358. 

ioGoss  et  al.  v.  Withers,  2  Burrows,  683. 


7 


221  ENEMY    CHARACTER    AND    PROPERTY. 

by  Lord  Stowell,20  and  was  incorporated  in  American  leg- 
islation and  taken  up  by  the  courts  of  the  United  States 
and  by  American  writers  until  it  has  come  to  be  known 
as  an  American  doctrine.21  In  the  United  States  the  rights 
of  the  old  owners  on  recapture  are  cut  off  by  condemnation 
proceedings. 

These  rules  of  domestic  prize  law  have  come  to  have  in- 
ternational significance. — These  questions  as  to  when  the 
title  of  the  individual  captor  becomes  vested,  and  as  to 
when  the  title  of  the  old  owner  is  so  cut  off  as  not  to  re- 
vive on  recapture,  are  evidently  questions  of  domestic  prize 
law,  but  they  have  been  bound  up  with  the  international 
question  as  to  when  a  neutral  gets  good  title  to  a  prize 
as  against  the  original  owner,  and  have  been  influential 
in  establishing  as  law  the  proposition  that  the  title  of 
the  capturing  nation  itself  is  not  complete  until  condem- 
nation by  a  prize  court.  This  is  not  as  yet  universally  ac- 
cepted, but  it  appears  to  have  the  weight  of  authority.  Its 
influence  is  apparent  in  the  practice,  which  has  sometimes 
been  followed,  of  restoring  vessels  which,  at  the  conclusion 
of  peace,  have  not  yet  been  condemned.  France  followed 
this  practice  with  Austria,  in  1859,  and  with  Prussia,  in 
1871.  Here,  however,  as  in  the  case  of  territory,  the  rule 
of  uti  possidetis  is  applied,  and  if  nothing  is  said  in  the 
treaty  of  peace  as  to  the  return  of  vessels,  that  fact  in 
itself  perfects  the  title  of  the  capturing  belligerent. 

Much  of  the  confusion  upon  the  question  as  to  when  the 
title  to  the  captured  ship  vests  in  the  captor  has  arisen 
from  the  confusion  of  the  doctrine  of  recapture  with  that 
of  postliminium.  At  the  time  when  the  latter  doctrine  was 
much  more  important  than  it  is  today,  and  consequently 
the  subject  of  far  more  study,  the  generally  accepted  doc- 
trine was  that  it  did  not  apply  to  ships  at  all,  that,  while 
perfect  title  to  territory  could  not  be  acquired  during  hos- 
tilities, this  was  not  true  of  captured  ships,  but  that  until 
the  bringing  of  the  ship  intra  praesidia,  or  its  possession 
for  twenty-four  hours  or  the  condemnation  of  a  prize  court, 
the  right  of  the  captor  was  possessory  merely,  but  that  it 
then  became  an  absolute  title.  If  the  ship  were  recaptured 
before  that  time,  the  title  did  not  revest  in  the  old  owner 

20  The  Hendrick  and  Maria,  4  Robinson  Admiralty  Reports,  55. 
siHeffter,  Le  Droit  Inter',  de  L'Europe,  4G0. 


DESIRABILITY  OF  ADJUDICATION".  ^25 

as  it  would  under  the  doctrine  of  postliminium,  but  it  was 
his  because  it  had  never  passed  from  him.  Recent  prac- 
tice has  tended  to  allow  the  old  owner  to  recover  the  ship 
as  long  as  it  is  recovered  before  the  termination  of  hostili- 
ties. If  countries  following  this  practice  still  hold  to  the 
old  rule  that  title  passes  and  only  passes  on  the  fulfillment 
of  one  of  the  old  conditions,  then  we  have  an  instance  of 
postliminium,  or  revested  title,  if  the  ship  is  recaptured 
after  the  fulfillment  of  the  conditions,  but  before  the  end 
of  the  war.  In  cases  of  recapture  the  rule  of  reciprocity 
is  generally  applied  to  allies  and  neutrals,  unless  their 
practice  is  less  liberal. 

What  is  necessary  to  constitute  capture. — Capture  takes  /-X' 

effect  on  a  vessel's  lowering  her  colors,  or  on  being  brought 
within  the  effective  control  of  the  enemy  without  having — J 
done  so.  The  sending  aboard  of  a  prize  crew  is  not  nec- 
essary at  least  in  the  United  States  and  Great  Britain. 
Evidence  of  intention  to  retain  possession,  however,  must 
be  given  to  prevent  subsequent  captors  from  regarding  the 
prize  as  abandoned ;  but  such  evidence  may  be  afforded  by 
the  presence  of  a  single  prize-master  who  in  no  way  con- 
trols the  navigation  of  the  vessel,  provided  the  circumstances 
are  such  as  to  warrant  the  belief  that  the  vessel  will  be 
conducted  safely  to  port. 

Captured  vessels  should  be  brought  in  for  adjudication 
if  possible. — Where  circumstances  permit,  all  nations  re- 
quire that  vessels  should  be  brought  into  port  for  adjudi- 
cation. This  is  essential  to  a  proper  control  over  naval 
forces,  as  well  as  to  protect  the  interests  of  neutrals  and 
to  some  degree  those  of  the  enemy.  Where  a  captured  vessel 
cannot  be  brought  into  a  domestic  port  or  the  port  of  an 
ally,  three  principal  courses  are  open  to  a  captor  (1),  to 
take  it  into  a  neutral  port  (2),  to  burn  or  scuttle  it,  and 
(3)  to  ransom  it. 

Prizes  in  neutral  ports. — The  first  course  is  proper  ac- 
cording to  Article  XXI  of  the  convention  on  the  rights 
and  duties  of  neutral  powers  in  naval  war  in  case  of  un- 
seaworthiness, stress  of  weather,  or  want  of  fuel  or  pro- 
visions, but  the  prize  "must  leave  as  soon  as  the  circum- 
stances which  justified  its  entry  are  at  an  end."  Article 
XXIII  of  that  convention  also  allows  prizes  to  enter  neu- 
tral ports  "when  they  are  brought  there  to  be  sequestered 
15 


'  '22 


£26  ENEMY    CHARACTER    AND    PROPERTY. 

pending  the  decision  of  a  Prize  Court."  This  is  "to  pre 
vent  the  destruction  of  prizes  or  render  it  less  frequent."2 
But  it  was  criticised  by  the  American  Delegation  as  the 
"revival  of  an  ancient  abuse"23  in  allowing  the  title  to 
property  captured  in  war  to  be  perfected  through  the  pro- 
tection afforded  by  neutral  territory,  and  it  was  not  ad- 
hered to  by  the  United  States. 

Destruction  of  captured  ship. — The  second  course  in- 
volves a  terrible  destruction  of  valuable  property  and  has 
been  severely  condemned,  but  if  a  belligerent  can  be  ef- 
fectively struck  at  through  his  commerce,  as  those  who 
uphold  the  capture  of  private  property  at  sea  must  con- 
tend, it  is  hard  to  say  that  he  may  not  be  struck  at  through 
the  destruction  of  his  ships  as  well  as  through  their  con- 
fiscation. It  must  always  remain  an  extreme  measure  to 
be  avoided  where  possible,  but  under  pressing  circumstances 
its  legality  is  unquestionable.  In  such  a  case,  neutral  prop- 
erty on  board  the  enemy  ship  would  appear  to  share  the 
fate  of  the  ship.  Such  was  the  decision  of  a  French  ap- 
pellate tribunal  in  the  case  of  the  Ludwig  and  Vorwarts 
during  the  Franco-German  War.  While  the  Declaration 
of  Paris  does  not  allow  the  confiscation  of  neutral  goods 
in  enemy  ships,  it  does  not  forbid  the  destruction  of  the 
vessel  because  of  their  presence.  If  this  were  the  case, 
enemy  ships  could  free  themselves  altogether  from  this  right 
of  the  belligerent  by  carrying  small  amounts  of  neutral 
goods. 

Rules  of  the  Institute  of  International  Law.— The  de- 
struction of  a  ship  is  permissible  under  the  model  Regu- 
lation for  Maritime  Prizes  of  the  Institute  of  International 
Law 


1 1 


1.  When  it  is  not  possible  to  hold  the  ship  to  the  fleet 
on  account  of  its  poor  condition,  there  being  a  rough  sea; 

"2.  When  the  ship  sails  so  poorly  that  she  is  not  able 
to  follow  the  ship  of  war  and  would  be  recaptured  by  the 
enemy ; 

"3.  AVhen  the  approach  of  a  superior  enemy  force  makes 
the  recapture  of  the  ship  apprehended; 

"4.     When  the  ship  of  war  is  not  able  to  place  in  the 

22\Vestlake,  II  International  Law,  331. 
23  Report  of  Delegation,  p.  53. 


RANSOM.  227 

ship  seized  a  sufficient  crew  without  diminishing  that  which 
is  necessary  to   its  own  safety. 

"5.  When  the  port  where  it  will  be  possible  to  conduct 
the  vessel  is  too  far  distant."-1 

At  the  Second  Peace  Conference  a  proposition  absolutely 
forbidding  the  destruction  of  neutral  prizes  was  vigorously 
supported  by  Great  Britain  and  the  United  States  but  failed 
of  adoption. 

Ransom. — The  third  course  open  to  the  captor  is  to  sell 
his  interest  in  the  prize  to  the  original  owner.  This  is 
done  by  means  of  a  ransom  bill,  which  serves  as  a  free- 
conduct  for  the  captured  vessel  to  return  to  its  own  coun- 
try, as  long  as  it  keeps  within  the  course  marked  out  by 
the  bill.  On  the  Continent  suit  can  be  brought  on  the  bill 
directly  by  the  holder,  even  though  he  be  an  alien  enemy, 
and  judging  by  the  opinion  of  American  jurists  a  similar 
procedure  would  probably  be  followed  in  the  United  States, 
in  spite  of  the  English  practice  of  requiring  the  bill  to  be 
enforced  by  means  of  a  suit  for  his  liberty  by  the  hostage 
who  was  retained  at  the  time  of  the  capture.  If  the  bill 
is  captured  before  arrival  at  a  place  of  safety,  it  is  ren- 
dered invalid.  The  subsequent  wrecking  of  a  ransomed 
vessel  does  not  invalidate  the  ransom  bill.  As  ransoming 
is  a  less  severe  measure  than  confiscation,  it  has  often  been 
prohibited  by  governments  except  under  grave  circum- 
stances. The  sum  secured  is  liable  to  be  small  compared 
with  the  value  of  the  vessel  and  the  crew  are  not  made 
prisoners  of  war.  Ransoming  has  never  been  forbidden, 
however,  by  the  United  States. 

As  prize  law  and  the  proceedings  of  prize  courts  are 
mainly  of  municipal  or  neutral  concern,  the  attempt  will 
not  be  made  here  to  discuss  them  further. 

2*6  Annuaire,  221. 


228  THE  QUALIFICATIONS  OF  BELLIGERENTS. 


CHAPTER  III. 

THE    QUALIFICATIONS    OF    BELLIGERENTS. 

The  present  and  subsequent  chapters  are,  mainly,  a  com- 
mentary on  The  Hague  and  Geneva  Conventions. 

H  I.  The  laws,  rights  and  duties  of  war  apply  not  only  to 
armies,  but  also  to  militia  and  volunteer  corps  fulfilling  the 
following  conditions: 

1.  To  be  commanded  by  a  person  responsible  for  his  sub- 
ordinates; 

2.  To  have  a  fixed  distinctive  emblem  recognizable  at  a  dis- 
tance; 

3.  To  carry  arms  openly ;  and 

4.  To  conduct  their  operations  in  accordance  with  the  laws 
and  customs  of  war. 

In  countries  where  militia  or  volunteer  corps  constitute  the 
army,  or  form  part  of  it,  they  are  included  under  the  denomi- 
nation "army." 

Where  militia  are  considered  part  of  the  army. — Just 
what  the  force  of  this  last  paragraph  is  it  is  hard  to  say. 
It  was  introduced  by  Colonel  Hammer,  the  Swiss  delegate, 
at  Brussels,  for  the  reason  that  in  Switzerland  the  militia 
forms  a  part  of  the  regular  army,  but  it  was  not  discussed 
and  was  apparently  considered  merely  a  question  of  nomen- 
clature. The  whole  article,  however,  is  open  to  the  con- 
struction that,  if  militia  or  volunteer  corps  constitute  the 
army  or  form  part  of  it,  they  are  entitled  to  the  privileges 
of  combatants,  irrespective  of  satisfying  the  four  preceding 
requirements.  It  is  hardly  possible  that  any  country  would 
treat  as  an  army  an  organization  that  failed  to  meet  any 
of  the  four  requirements,  except  the  second,  which  exacts 
a  distinctive  mark,  fixed  and  recognizable  at  a  distance. 
At  Brussels,  Colonel  Staaf,  the  delegate  of  Sweden  and 
Norway,  said  that  the  militia  which  formed  part  of  the 
army  of  the  countries  he  represented,  was  without  such  a 
distinctive  mark ;  and,  in  the  war  in  South  Africa  the  Boer 
forces  were  similarly  situated.  Where  men  act  in  large 
bodies,  after  the  manner  of  armies,  it  would  seem  that  the 
lack  of  a  uniform,  or  of  something  approaching  it,  would 


IRREGULAR  WARFARE.  229 

not  subject  them  to  penal  measures,  and  it  did  not  do  so 
in  South  Africa.  "Where  such  forces  are  detailed  on  de- 
tached service,  however,  all  the  reasons  for  some  fixed  sign 
to  distinguish  combatants  from  noncombatants  come  into 
play,  and  the  fact  that  such  forces  are  considered  part  of 
the  "army"  would  appear  to  be  immaterial. 

The  Evil  and  the  Inspiration  of  irregular  fighting. — One 
of  the  greatest  evils  in  warfare  has  been  irregular  fighting. 
Individuals,  moved  no  doubt  often  by  patriotic  sentiments, 
have  taken  the  fighting  into  their  own  hands,  and  the 
enemy,  unable  to  distinguish  between  them  and  the  worst 
breakers  of  the  peace,  has  been  compelled  to  resort  to  meas- 
ures of  punishment  which  have  embittered  the  struggle  and 
sown  the  seeds  of  national  distrust  and  hate.  Governments 
have  organized  partisan  corps  to  act  on  the  flank  and  rear 
of  armies,  and,  as  in  our  Civil  War  and  the  Franco-German 
War,  these  have  been  such  a  scourge  to  friend  and  foe  alike 
that  their  organization  has  been  regretted  and  even  put  an 
end  to  by  those  who  were  responsible  for  it.  Again,  con- 
flicts have  eventually  degenerated  into  guerilla  warfare  and 
extreme  measures,  such  as  those  of  reconcentration,  have 
been  the  consequence.  The  evils  and  general  ineffectiveness 
of  guerilla  fighting  are  not  likely  to  be  exaggerated.  On 
the  other  hand,  many  of  the  brightest  pages  in  history  are 
accounts  of  the  heroic  struggles  carried  on  by  the  burgher 
and  peasant  populations  of  Holland  and  Switzerland,  and 
the  incidents  which  we  love  longest  to  linger  over  in  the 
birth  of  our  own  nation,  are  the  impromptu  fights  such  as 
those  at  Lexington  and  Concord,  and  the  daring  exploits 
and  privations  of  bands  such  as  those  of  Marion  and  Sum- 
ter. And  in  wars  so  recent  as  those  of  Napoleon,  the  possi- 
ble effectiveness  of  such  fighting  was  shown  by  the  part  the 
Spanish  people  played  in  driving  him  from  the  Peninsula. 

Division  between  the  large  and  small  powers  at  Brussels 
and  The  Hague. — Both  of  these  things,  the  horrors  of  hv 
regular  warfare  and  the  inspiration  of  its  heroic  sacrifices, 
were  present  in  the  minds  of  the  delegates  at  Brussels  and 
at  The  Hague;  but  it  was  the  horrors  that  predominated 
in  the  minds  of  the  delegates  of  the  great  military  powers 
while  it  was  the  memory  of  their  childhood  heroes  that  ap- 
pealed most  strongly  to  the  representatives  of  the  others. 

The  Original  Project  at  Brussels  limited  those  entitled  to 


230  THE  QUALIFICATIONS  OF  BELLIGERENTS. 

the  rights  of  regular  combatants  to  a  definite  class. — The 
original  Russian  Project  at  Brussels  contained  an  affirma- 
tive article,  corresponding  to  this  article  of  The  Hague  Con- 
vention ;  but  it  was  supplemented,  as  we  have  seen,1  by  a 
negative  clause  which  proposed  to  hand  over  to  military 
justice  all  who  should  engage  in  hostilities  without  comply- 
ing with  its  terms.  ►The  affirmative  stipulation  deprived  no 

7s  one  of  combatant  rights,  but  left  the  question  of  who  is  not 
entitled  to  such  rights  to  the  unwritten  law  of  nations.  The 
addition  of  the  negative  clause  would  have  avoided  resort 
to  the  unwritten  law,  and  would  have  substituted  certainty 
in  this  regard  for  uncertainty;  but  the  representatives  of 
the  smaller  powers  felt  that  that  would  be  the  certainty  of 
injustice,  as  was  shown  by  their  indignant  protest  that  they 
could  consent  to  no  provision  having  "a  tendency  either 
to  weaken  national  defense  or  to  detach  citizens  from  their 
duty  towards  their  country."2 
The  Russian  delegates  considered  that  this  article  would 

"•  not  restrict  rights  of  defense,  but  would  merely  impose  a 
duty  on  governments  to  give  some  organization  to  the  de- 
fense in  times  of  peace. — The  Russian  delegates  on  the  other 
hand  urged  that  the  articles  of  their  project  could  have  no 
such  tendency,  but  that  they  would,  on  the  contrary,  by 
making  it  the  duty  of  governments  to  organize  their  de- 
fense, tend  to  strengthen,  rather  than  weaken,  the  national 
defense.    The  argument  was  made  in  vain. 

Refusal  of  the  smaller  powers  to  agree  to  the  negative 
article  of  the  original  Project. — There  were  two  possible 
forms  of  warfare  which  the  negative  clause  condemned,  but 
in  the  condemnation  of  which  the  delegates  of  the  smaller 
powers  absolutely  refused  to  concur.  These  were  (1)  the 
levee  en  masse  in  occupied  territory,  and  (2)  individual  acts 
of  hostility  in  unoccupied  territory,  such  as  the  blowing  up 
of  bridges  in  face  of  the  invader  by  persons  not  satisfying 
the  conditions  of  the  affirmative  stipulation.3  The  second 
of  these  is  not  likely  to  be  of  much  importance,  but  the  first 
is,  and  it  gave  rise  to  a  bitter  debate  which  will  be  con- 
sidered under  the  next  article.  The  firm  attitude  of  the 
delegates  of  the  smaller  powers  rendered  the  adoption  of 

i  Supra,  p.  104. 

2  Protocol  1  of  the  Committee. 

3  Protocol  18  of  the  Committee. 


IRREGULAR  WARFARE.  231 

the  negative  clause  impossible  and  it  was  dropped  early  in 
the  Conference  and  was  not  again  taken  up.  The  article 
as  finally  adopted  at  Brussels  therefore,  had  no  negative 
supplement,  and  in  this  form  was  included  in  The  Hague 
Regulations  as  Article  I. 

The  article  finally  adopted,  which  is  embodied  in  The 
Hague  Convention,  is  not  restrictive. — The  fact  that  this 
article,  the  negative  supplement  having  been  dropped,  can 
convey  no  negative  implication,  can  not  be  too  clearly 
brought  out.  It  was  repeatedly  emphasized  at  Brussels  and 
at  The  Hague,4  and  was  the  only  basis  on  which  agreement 
was  possible.  "When  reading  this  article,  therefore,  we  are 
constantly  to  bear  the  fact  in  mind,  that,  while  it  assures 
recognition  as  soldiers  to  those  who  satisfy  its  conditions, 
it  neither  by  assertion  nor  by  implication  denies  such  recog- 
nition to  anyone.  If  anyone  engaging  in  hostilities  is  denied 
such  recognition,  it  must  be  because  he  has  acted  contrary 
to  the  unwritten  law  of  nations.  Just  what  acts  are  so  pro- 
scribed is  more  or  less  uncertain,  but  it  is  probable  that 
none  but  those  brought  out  by  the  delegates  of  the  smaller 
powers  at  Brussels  will  cause  much  difficulty.  Others  may 
possibly  arise,  however,  and  it  is  well  they  were  not  pre- 
judged by  the  adoption  of  a  hard  and  fast  rule. 

Orders  from  headquarters  not  necessary  to  give  a  volun- 
teer corps  the  character  of  regular  combatants. — The  orig- 
inal draft  of  this  article,  at  Brussels,  required  that  militia 
and  volunteer  corps  should  be  subject  to  orders  from  head- 
quarters, but  the  Austrian  delegate  pointed  out  the  diffi- 
culty a  detached  corps  often  would  encounter  in  communi- 
cating with  the  commander-in-chief,  and  the  clause  was 
dropped.  It  would  almost  wholly  have  prevented  the  or- 
ganization of  such  corps  in  occupied  territory.  Any  person 
commanding  the  respect  of  his  community  through  his  per- 
sonality, his  property  or  his  official  position,  and  conversant 
with  the  laws  of  war,  is  a  responsible  person  in  the  sense  of 
Clause  I.5 

Necessity  of  a  fixed  emblem. — A  fixed  distinctive  emblem  ^ 
is  necessary  in  order  to  draw  a  sharp  line  between  com- 
batants and  noncombatants.     Without  such  an  emblem,  it 

4  Conference  Internationale  de  la  Paix,  p.  50;   see  also  preamble  to 
Convention  drawn  up  at  second  Conference,  supra,  p.   186. 
s  Protocol   12  of  the  Committee. 


*<? 


232  THE  QUALIFICATIONS  OF  BELLIGERENTS. 

is  impossible  to  distinguish  combatants  from  noncombatants 
when  the  former  are  acting  in  detached  bodies,  and  the 
whole  population  is  apt  to  be  drawn  into  the  struggle. 
The  emblem  need  not  be  a  uniform,  but  it  must  be  some- 
thing recognizable  at  a  distance  and  which  cannot  be  put 
on  and  off  at  pleasure.  That  combatants  must  carry  arms 
openly  and  observe  the  laws  and  customs  of  wars  might 
have  been  taken  for  granted,  but  it  was  thought  best  to 
give  to  these  requirements  the  emphasis  of  express  state- 
ment. 

Employment  of  savage  troops. — Possibly  the  fourth  re- 
quirement was  aimed  at  the  employment  of  savage  or  semi- 
civilized  troops.  Ever  since  Lord  Chatham  uttered  his 
famous  protest  against  the  employment  of  Indians  in  the 
war  with  the  colonies,  it  has  been  recognized  as  improper 
to  employ  troops  whose  accustomed  manner  of  warfare 
gives  evidence  that  they  will  not  live  up  to  the  standards 
of  civilized  life. 

H  I  applicable  in  occupied  as  well  as  unoccupied  territory. 
— Article  1,  which  has  just  been  discussed,  unlike  Article 
II,  which  will  next  be  taken  up,  applies  to  corps  acting 
either  in  unoccupied  territory,  or  in  occupied  territory,  or 
in  the  territory  of  the  enemy. 

H  II.  The  inhabitants  of  a  territory  which  has  not  been  oc- 
cupied, voho,  on  the  approach  of  the  enemy,  spontaneously  take 
up  arms  to  resist  the  invading  troops  without  having  had  time 
to  organize  themselves  in  accordance  with  Article  1,  shall  be 
regarded  as  belligerents  if  they  carry  arms  openly  and  if  they 
respect  the  laws  and  customs  of  war. 

Levees  en  masse  in  unoccupied  territory. — This  article 
was  the  result  of  a  compromise.  The  delegates  of  the  smal- 
ler powers  wished  a  general  recognition  of  levees  en  masse 
— spontaneous  risings  of  the  population — in  occupied  and 
unoccupied  territory  alike,  irrespective  of  any  compliance  ■ 
with  the  conditions  of  Article  I.  On  the  other  hand,  the 
German  delegate  in  particular  contended  that  levees  en 
masse  should  be  required  to  comply  with  the  terms  of  Ar- 
ticle I,  no  matter  where  they  should  take  place.  "*After  an 
acrimonious  debate,  the  question  of  risings  in  occupied  ter- 
ritory was  left  to  the  unwritten  law  of  nations ;  while  it  was 
decided  that  in  unoccupied  territory,  if  there  has  been  no 

6  See  also  Wcstlake,  II  International  Law,  90. 


LEVEES  EN  MASSE.  233 

opportunity  to  organize  in  conformity  with  Article  I,  those 
engaged  in  popular  risings  may  enjoy  the  privileges  of  com- 
batants irrespective  of  their  compliance  with  requirements 
1  and  2  of  Article  I.  The  requirement  of  carrying  arms  open- 
ly was  added  at  the  Conference  of  1907. -y^ 

Levees  en  masse  in  occupied  territory  complying  with  the 
conditions  of  Article  I  are  entitled  to  regular  combatant 
rights. — Beyond  this  there  is  much  uncertainty.  It  seems 
beyond  question,  however,  that,  where  a  population  in  oc- 
cupied territory  has  complied  with  the  conditions  of  Ar- 
ticle I,  it  is  entitled  to  combatant  privileges.  Possibly  the 
occupant  may  be  entitled,  by  virtue  of  his  rights  as  such, 
to  punish  individual  members  of  the  population  for  joining 
the  military  organizations  of  their  country  after  the  occu- 
pation; but,  once  having  joined,  they  are  entitled  to  the 
privileges  of  combatants.  Not  only  are  penal  measures 
against  them  for  what  they  have  done  improper,  but  the 
communities  from  which  they  come  cannot  properly  be  held 
collectively  responsible  therefor,  since  the  act  of  joining 
the  military  organizations  of  their  country,  though  it  may 
be  contrary  to  the  orders  of  the  military  occupant,  is  not 
contrary  to  the  law  of  nations.  Where  penalties  have  been 
imposed  on  individuals  in  occupied  territory  for  such  acts 
they  have  been  much  less  severe  than  the  penalties  inflicted 
for  popular  uprisings. 

Unsuccessful  uprisings  in  occupied  territory  may  entitle 
the  occupier  to  use  repressive  measures. — A  second  point  in 
relation  to  the  action  of  populations  in  occupied  territory 
also  seems  clear.  ^This  is,  that,  where  the  population  has 
not  been  organized  in  accordance  with  Article  I,  and  the 
uprising  is  not  even  temporarily  successful,  the  occupant 
is  entitled  to  use  severe  repressive  measures.>  Not  only  do 
many  of  the  privileges  of  noncombatants  cease  from  the 
wiping  out  of  the  distinction  between  combatants  and  non- 
combatants,  but  in  addition  to  this  it  has  been  customary 
for  the  belligerent  to  go  farther  and  punish  with  severity 
the  attempt  made  to  overthrow  his  authority.  The  position 
of  the  occupant  in  the  occupied  territory  is  to  a  certain 
degree  analogous  to  that  of  a  sovereign.  Some  authority 
is  necessary  wherever  highly  civilized  life  is  to  exist  and 
as  in  the  occupied  territory  the  only  territorial  authority 
for  the  time  being  is  the  occupant,  he  is  entitled  to  punish 


234  THE  QUALIFICATIONS  OF  BELLIGERENTS. 

all  attempts  made  against  him  there  by  any  other  than  the 
properly  qualified  forces  of  the  enemy.  Attempts  made  to 
overturn  a  sovereign  can  alone  be  justified  by  success,  and 
so  it  is  of  attempts  made  against  an  occupant. 

Uprisings  which  are  temporarily  successful  do  not  give 
occasion  for  repressive  measures.— If  the  success  in  displac- 
ing the  occupant's  authority  is  final,  no  question  can  arise 
as  to  the  punishment  of  the  population  which  has  partici- 
pated in  the  uprising.    But  the  case  was  suggested  at  Brus- 
sels, although  not  authoritatively  discussed,  where  the  up- 
rising is  temporarily  successful,  but  the  occupant  ultimately 
regains  his  authority.  *It  was  suggested  that,  as  the  test  of 
occupation  is  the  ability  to  suppress  insurrection,  the  fact 
of  the  uprisings  being  even  temporarily  successful  shows 
that  the  occupation  was  not  effective,  and  that  the  self- 
styled  occupant,  being  such  in  name  and  not  in  fact,  has 
no  right  to  resort  to  repressive  measures  available  to  a  real 
occupant.    This  position  would  appear  to  be  unanswerable, 
and  was  not  authoritatively  questioned  by  any  of  the  dele- 
gates.    Nice  questions  are  liable  to  arise  as  to  just  when 
an  insurrection  is  temporarily  successful,  but,  if  the  test  of 
success  is  the  effective  displacement  of  the  power  of  the 
belligerent  for  the  time  being,  it  would  seem  that  there 
should  be  no  greater  difficulty  about  the  application  of  this 
rule  than  of  many  others. 

H  III.  The  armed  forces  of  the  belligerent  parties  may  con- 
sist of  combatants  and  noncombatants.  In  the  case  of  capture 
by  the  enemy,  both  have  a  right  to  be  treated  as  prisoners  of 

war. 

This  article,  almost  superfluous,  it  was  deemed  advisable 
to  add  in  order  to  ensure  to  the  noncombatant  part  of  the 
army  equal  treatment  with  the  combatant.7 

PRIVATEERING. 

Abolition  of  privateering. — The  Declaration  of  Paris  of 
1856  contains  the  following  provision:  >*' Privateering  is 
and  remains  abolished."  Although  the  United  States  has 
never  adhered  to  the  Declaration,  Spain  and  Mexico,  the 
most  notable  of  the  other  nonadhering  powers,  took  occa- 

7  Protocol  13  of  the  Committee. 


7s 


CONVERSION  OF  MERCHANTMEN.  235 

sion  of  the  Second  Hague  Conference  to  do  so  and  it  is 
probable  that  the  above  statement  is  the  expression  of  an 
historic  fact.  Privateering  has  stood  for  much  that  was 
patriotic  and  gallant,  but  it  has  also  stood  for  all  that  was 
worst  in  visit  and  search  and  in  the  capture  of  private 
property  on  the  high  seas,  and  if  revived,  its  former  evils 
would  hardly  be  tolerated  now. 

Conversion  of  merchantmen. — The  Declaration  of  Paris 
has  been  supplemented  by  the  following  convention  drawn 
up  at  the  late  Peace  Conference,  but  not  signed  or  adhered 
to  by  the  United  States  because  of  its  nonadherence  to  the 
Paris  Declaration.  It  is  not  likely,  however,  that  any  of 
the  rules  it  lays  down  will  be  repudiated. 

"Whereas,  it  is  desirable,  in  view  of  the  incorporation  in 
time  of  war  of  merchant  ships  in  the  fighting  fleet,  to  de- 
fine the  conditions  subject  to  which  this  operation  may  be 
effected ; 

Whereas,  however,  the  Contracting  Powers  have  been 
unable  to  come  to  an  agreement  on  the  question  whether 
the  conversion  of  a  merchant  ship  into  a  warship  may  take 
place  on  the  high  seas,  it  is  understood  that  the  question  of 
the  place  where  such  conversion  is  effected  remains  outside 
the  scope  of  this  Agreement  and  is  in  no  way  effected  by 
the  following  rules ;  \ 

[the  Plenipotentiaries  of  the  Contracting  Powers]   have      vl 
agreed  upon  the  following  provisions  : 

.    Art.  I.     A  merchant  ship  converted  into  a  warship  cannot      > 
have  the  rights  and  duties  accruing  to  such  vessels  unless  it  is 
placed  under  the  direct  authority,  immediate  control  and  re- 
sponsibility of  the  Power  whose  flag  it  flies. 

Art.  II.  Merchant  ships  converted  into  warships  must  bear 
the  external  marls  which  distinguish  the  warships  of  their 
nationality. 

Art.  III.  The  commander  must  be  in  the  service  of  the  State 
and  duly  commissioned  by  the  competent  authorities.  His  name 
must  figure  on  the  list  of  the  officers  of  the  fighting  fleet. 

Art.  IV.     The  crew  must  be  subject  to  military  discipline. 

Art.  V.  Every  merchant  ship  converted  into  a  warship  must 
observe  in  its  operations  the  laws  and  customs  of  war. 

Art.  VI.  A  belligerent  who  converts  a  merchant  ship  into 
a  warship  must,  as  soon  as  possible,  announce  such  conversion 
in  the  list  of  warships. 


236  THE  QUALIFICATIONS  OF  BELLIGERENTS. 

As  to  the  placeof  conversion,  "the  American  Delegation 
wishing  to  obviate  controversies  in  the  future  insisted  that 
the  transformation  should  take  place  either  within  the  home 
port  or  territorial  waters  of  the  transforming  country. 
Other  delegations  insisted  that  the  transformation  might 
take  place  not  only  within  the  home  ports  and  territorial 
waters,  but  upon  the  high  seas.  As  the  difference  of  opin- 
ion was  radical  and  irreconcilable,  it  was  agreed  to  eliminate 
the  question  from  the  Convention."8  On  general  principles 
it  is  hard  to  see  why  the  conversion  should  not  take  place 
on  the  high  seas  as  well  as  in  territorial  waters,  unless  it  is 
an  attempt  to  evade  treaty  obligations  or  general  interna- 
tional obligations  such  as  those  of  neutrality. 


Noncommissioned  vessels  may  resist  when  attacked,  and 
may  make  good  prize  of  the  attacking  vessel.  Otherwise 
they  have  no  combatant  rights. 

8  Eeport  of  American  Delegation,  p.  40. 


PRISONERS    OF    WAR.  237 


CHAPTER  IV. 

PRISONERS    OF    WAR. 

H  IV.  Prisoners  of  war  are  in  the  power  of  the  hostile  Gov- 
ernment, but  not  of  the  individuals  or  corps  who  capture  them. 

They  must  be  humanely  treated.  \K 

All  their  personal  belongings,  except  arms,  horses  and  mili- 
tary papers,  remain  their  property.  ** 

Prisoners  are  prisoners  of  the  opposing  government  and  -j 

not  of  the  individuals  or  corps  which  make  the  capture. — 
The  principle  underlying  this  article  may  seem  to  be  al- 
most too  obvious  today  for  utterance,  but  it  was  much  de- 
bated among  the  earlier  writers  on  the  law  of  nations.  In 
the  Middle  Ages  the  feeling  of  the  knights  was  strong  that 
prisoners  captured  were  their  prisoners  and  that  booty  cap- 
tured was  their  booty,  and  the  feeling  was  not  unnatural 
when  the  capture  of  prisoners  and  booty  was  so  much  a 
matter  of  personal  prowess.  But  the  lessening  of  personal 
contact  between  combatants  with  the  introduction  of  fire- 
arms, and  the  change  of  warfare  from  an  aggregation  of 
personal  combats  to  a  highly  organized  contest  of  armies, 
caused  the  importance  of  the  individual  to  decline,  and 
with  the  growth  of  the  powerful  modern  state  the  prin- 
ciple that  prisoners  and  booty  pertain  to  the  government 
and  not  to  individuals  came  to  have  unquestioned  authority.- 

Under  no  circumstances  can  prisoners  be  put  to  death 
except  for  crime  or  offenses  against  martial  law. — The  ques-  A. 
tion  was  also  long  discussed  whether  in  cases  of  extreme 
necessity  it  might  not  be  permissible  to  put  prisoners  to 
death,  but  it  is  hardly  conceivable  that  circumstances  war- 
ranting such  action  could  arise  today.  — .. 

The  use  of  violence  towards  prisoners  of  war  only  war- 
ranted in  special  cases. — It  was  provided  in  the  original 
draft  of  the  Declaration  of  Brussels  that  prisoners  should 
not  be  subjected  to  any  violence.  This  provision,  from  the 
spirit  of  which  there  was  no  dissent,  would  have  made  cor- 
poral punishment  impossible,  besides  putting  under  the  ban 
many  of  the  gravest  abuses  in  the  treatment  of  prisoners 


238  PRISONERS   OF   WAR. 

of  war  in  the  past ;  but  it  was  shown  that  there  were  cases 
j/  where  the  use  of  force  is  absolutely  necessary,  as  where  a 
prisoner  obstinately  refuses  to  march;  and  it  was  there- 
fore decided  only  to  require  that  prisoners  be  "humanely 
treated."1 

Private  property  of  prisoners. — The  exclusion  of  arms, 
horses  and  military  papers  from  the  general  exemption  of 
the  private  property  of  prisoners  from  confiscation,  is  in 
line  with  the  tendency  to  regard  property  which  at  sea 
would  be  contraband  of  war  as  still  subject  to  capture.2  The 
exemption  of  the  private  property  of  the  prisoner  from  cap- 
ture, however,  does  not  prevent  its  sequestration  during  the 
period  of  captivity,  especially  where,  as  in  the  case  of  the 
retention  of  considerable  sums  of  money,  its  retention  by 
the  prisoner  would  be  likely  to  enable  him  to  escape.  As 
Professor  Holland  says:  "It  may  be  a  question  whether 
large  sums  of  money  found  upon  prisoners,  or  in  their  bag- 
gage are  in  fact  their  private  property."3  The  American 
Articles  even  went  so  far  as  to  lay  down  that  large  sums 
found  in  the  private  luggage  of  prisoners  should  not  be 
treated  as  private  property  at  all.4 

H  V.  Prisoners  of  war  may  be  interned  in  a  town,  fortress, 
camp  or  other  place,  and  bound  not  to  go  beyond  certain  fixed 
limits;  but  they  cannot  be  confined  except  as  an  indispensable 
measure  of  safety  and  only  while  the  circumstances  which  neces- 
sitate the  measure  continue  to  exist. 

No  ignominy  attaching  to  the  condition  of  a  prisoner  of 
war. — The  terms  of  this  article  were  chosen  with  especial 
care,  in  order  to  negative  any  possible  implication  of  ig- 
nominy attaching  to  the  condition  of  a  prisoner  of  war. 
The  humane  treatment  of  prisoners  of  war  during  and  since 
the  Franco-German  "War  is  one  of  the  most  commendable 
things  in  modern  military  history.  The  last  clause  pro- 
viding that  prisoners  shall  be  confined  "only  while  the 
circumstances  which  necessitate  the  measure  continue  to 
exist,"  was  added  in  1907.  Those  confined  in  so-called 
concentration  camps  are  clearly  entitled  to  as  liberal  treat- 
ment as  regular  prisoners  of  war,  but  it  would  seem  with 

i  Protocol  5   of  the  Committee. 

2  But  see  infra,  p.  326. 

3T.  E.  Holland,  The  Laws  and  Customs  of  War  on  Land,  p.   11. 

4  Article  72. 


REGULATIONS   AS    TO    WOKK. 


239 


Westlake  that  H  III  and  V  have  no  direct  bearing  on  con- 
centration.5 

H  VI.     The  State  may  utilize  the  labor  of  prisoners  of  war     ^ 
according   to   their  rank  and  aptitude,  officers  excepted.     The 
tasks  shall  not  be  excessive  and  shall  have  no  connection  with 
the  operations  of  the  war. 

Prisoners  may  be  authorized  to  work  for  the  public  service, 
for  private  persons,  or  on  their  own  account. 

Work  done  for  the  State  is  paid  at  the  rates  in  force  for 
work  of  a  similar  kind  done  by  soldiers  of  the  national  army, 
or,  if  there  are  none  in  force,  at  a  rate  according  to  the  work 
executed. 

When  the  work  is  for  other  branches  of  the  public  service  or 
for  private  persons,  the  conditions  are  settled  in  agreement  with 
the  military  authorities. 

The  wages  of  the  prisoners  shall  go  towards  improving  their 
position,  and  the  balance  shall  be  paid  them  on  their  release, 
after  deducting  the  cost  of  their  maintenance. 

The  condition  of  the  prisoner  of  war  not  that  of  slavery 
or  penal  servitude.— This  article  strikingly  demonstrates 
how  radically  the  condition  of  a  prisoner  of  war  differs 
from  slavery  and  other  forms  of  involuntary  servitude,  and 
especially  from  that  of  punishment  for  crime.  The  prisoner 
of  war  is  subject  to  such  restraints  as  will  prevent  him  from 
rejoining  the  forces  of  his  country,  but  he  is  not  a  criminal, 
nor  is  he  the  slave  for  the  time  being  of  the  state  which 
has  captured  him.  But,  as  the  belligerent  is  entitled  to  re- 
quisition the  services  of  the  inhabitants  of  the  country 
through  which  his  army  passes  so  long  as  these  services 
are  not  connected  with  military  operations,  it  is  eminently 
reasonable  that  he  should  be  entitled  to  claim  the  same  serv- 
ices of  prisoners  of  war  for  whose  maintenance  he  is  pri- 
marily liable.  It  has  been  claimed  that  inhabitants  whose 
services  have  been  requisitioned  have  a  right  to  be  compen- 
sated for  them,  but,  if  they  have  not,  that  is  no  reason  why 
prisoners  should  have  no  such  right,  as  the  services  of  the 
inhabitants  are  occasional,  while  those  of  prisoners  are  apt 
to  extend  over  a  considerable  period,  so  that,  if  they  should 
be  uncompensated,  their  condition  would  truly  bear  a  close 
resemblance  to  penal  servitude  if  not  slavery  itself. 

Democracy  the  rule  in  the  military  service. — In  the  orig- 

5  II  International  Law,  268. 


240  PRISONERS   OF   WAR. 

inal  draft  of  the  Brussels  Declaration,  the  first  paragraph 
of  this  article  reads  that  certain  labour  might  be  required 
of  prisoners  of  war,  "provided  such  employment  be  not 
excessive  or  humiliating  to  the  rank  and  social  position 
which  they  occupy  in  their  own  country."  At  the  sugges- 
tion of  General  Voigts-Rhetz,  the  German  delegate,  the  ref- 
erence to  soeial  position  was  suppressed.  His  words  are 
memorable : 

' '  The  man  of  the  most  noble  birth  and  the  peasant  of  the 
lowest  class,  the  scholar  and  the  artisan,  the  rich  and  the 
poor,  are  equals  in  the  military  service ;  they  should  equally 
remain  so  if  taken  prisoners ;  they  should  work  on  the  same 
footing."6 
t  Labor  of  prisoners  not  to  involve  participation  in  military 
operations  against  their  country.— The  provision  that  the 
labor  required  of  prisoners  of  war  shall  have  nothing  to  do 
with  the  operations  of  war  is  liable  to  be  fruitful  of  inter- 
pretations. It  unquestionably  forbids  forced  participation 
in  military  operations  having  an  immediate  connection  with 
the  war,  but  whether  it  goes  further  than  this  and  forbids 
work  on  fortifications  not  in  the  theatre  of  war,  seems  to  be 
an  open  question.  The  better  opinion  would  appear  to  be 
that  it  does  not  forbid  the  requirement  of  such  work.7  For 
further  treatment  of  this  subject,  see  Articles  XXIII  and 
XLIV. 

That  the  terms  of  agreement  for  working  should  be  set- 
tled with  the  military  authorities  seems  unavoidable. 
Prisoners  would  be  in  no  position  to  enforce  their  claims, 
and  constant  bickering  between  the  prisoners  and  the  in- 
habitants would  be  inevitable.  Besides,  prisoners  might  be 
enabled  to  escape  through  the  help  of  secret  sympathizers, 
or  by  the  use  of  money  if  it  were  paid  directly  to  them. 

British  and  French  practice  not  to  deduct  cost  of  mainte- 
nance from  earnings. — In  neither  the  British  nor  the  French 
army,  is  it  the  practice  to  deduct  the  cost  of  their  mainte- 
nance from  the  earnings  of  prisoners  of  war,  but  Professor 
Holland  says  that  the  British  government  expects  reciproci- 
ty of  treatment  from  the  other  belligerent.8 

6  Protocol   5   of   the   Committee. 

7  Holland,  The  Laws  and  Customs  of  War  on  Land,  p.  11.     But  see 
Westlake,   II   International   Law,   C4. 

s  Ibid.,  p.  12:  Quelle.  Precis  des  Lois  de  la  Guerre,  I,  202. 


MAINTENANCE.  241 

The  phrase  ''officers  excepted"  in  the  first  paragraph  is 
new  as  is  also  the  provision  in  the  third  paragraph  that  "if 
there  are  none  in  force,  at  a  rate  according  to  the  work 
executed."  The  latter  change  was  made  upon  the  repre- 
sentation of  several  delegates  that  the  laws  and  regulations 
of  the  states  which  they  represented  made  no  provision  for 
the  compensation  of  prisoners  of  war  for  service  rendered 
to  the  captor  state,  or  to  individuals  or  corporations  with 
the  consent  of  that  government.9 

H  VII.  The  Government  into  whose  hands  prisoners  of  war 
have  fallen  is  charged  with  their  maintenance. 

In  the  absence  of  a  special  agreement  between  the  belligerents, 
prisoners  of  war  shall  be  treated  as  regards  board,  lodging  and 
clothing  on  the  same  footing  as  the  troops  of  the  Government 
who  captured  them. 

Duty  to  care  for  prisoners  especially  in  resorting  to  such 
extreme  measures  as  reconcentration. — The  principle  of  this 
article  is  especially  important  where  extreme  measures  such 
as  reconcentration  camps,  are  resorted  to.  No  government 
is  justified  in  enforcing  such  measures  which  is  unwilling 
or  unprepared  to  take  proper  care  of  its  prisoners. 

H  VIII.  Prisoners  of  war  shall  be  subject  to  the  laws,  regu- 
lations and  orders  in  force  in  the  army  of  the  State  in  whose 
power  they  are.  Any  act  of  insubordination  justifies  the  adop- 
tion towards  them  of  such  measures  of  severity  as  may  be  con- 
sidered necessary. 

Escaped  prisoners  who  are  retahen  before  being  able  to  re-  *> 
join  their  own  army  or  before  leaving  the  territory  occupied  by 
the  army  which  captured  them  are  liable  to  disciplinary  punish- 
ment. 

Prisoners  who,  after  succeeding  in  escaping,  are  again  taken 
prisoners,  are  not  liable  to  any  punishment  on  account  of  their 
previous  flight. 

One  of  the  few  instances  of  the  sanctioning  of  penal  power 
in  this  Convention. — This  is  one  of  the  few  articles  sanc- 
tioning the  exercise  of  penal  power  by  a  belligerent. 

Summons  necessary  before  shooting  at  escaping  prisoners. 
— The  Brussels  Declaration  provided  that  "arms  may  be 
used,  after  summoning,  against  a  person  attempting  to 
escape;"  and  this  is  substantially  included  in  the  second 
paragraph  of  the  present  article,  allowing  such  measures 

a  General  Davis,  II  American  Journal  of  International  Law,  68. 
16 


242  PRISONERS   OF    WAR. 

of  severity  as  are  necessary  in  cases  of  insubordination. 
A  mere  attempt  to  escape  is  not  an  act  of  insubordination, 
until  the  prisoner  has  been  summoned  to  stop ;  so  that  the 
old  provision  is  clearly  included  in  the  new.  It  may  well 
be  wished,  however,  that  the  express  requirement  of  a  sum- 
mons before  firing  had  been  retained. 

Prisoner  who  has  succeeded  in  escaping  not  liable  to  sub- 
sequent punishment. — The  escape  of  a  prisoner  is  not  an 
offense  against  the  lawrs  of  war;  consequently,  if,  after  mak- 
ing his  escape,  he  is  recaptured,  he  is  not  liable  to  punish- 
ment, although  he  may  be  placed  under  stricter  surveil- 
lance. But,  if  there  were  no  liability  to  punishment  for 
attempting  to  escape,  such  attempts  would  be  unceasing, 
while  the  belligerent,  except  by  keeping  a  close  guard, 
would  have  to  look  on  with  hands  folded.  A  distinction  is 
therefore  made  between  successful  and  unsuccessful  at- 
tempts, the  latter  being  subject  to  disciplinary  punishment 
such  as  confinement,  while  the  former  are  not.  The  pris- 
oner, however,  is  not  justified  in  using  violence  in  attempt- 
ing to  escape :  and,  if  he  resorts  to  such  methods,  may  be 
punished  under  the  first  paragraph  of  this  article,  accord- 
ing to  the  laws,  regulations  and  orders  in  force  in  the 
army  of  the  State  into  whose  hands  he  has  fallen. 

Conspiracy  and  revolt. — Conspiracy  and  revolt  are  also 
punishable  under  the  first  paragraph.  Conspiracy  to  escape 
is  a  less  serious  offense  than  revolt.10 
>-~  H  IX.  Every  prisoner  of  war  is  bound  to  give,  if  he  is  ques- 
tioned on  the  subject,  Jiis  true  name  and  rani:,  and  if  he  in- 
fringes this  ride,  he  is  liable  to  have  the  advantages  given  to 
prisoners  of  his  class  curtailed. 

Unfairness  of  misrepresentation  of  rank  in  case  of  ex- 
change.— The  unfairness  of  a  prisoner's  misrepresenting  his 
rank  in  a  matter  such  as  that  of  exchange  is  evident. 
S<  H  X.  Prisoners  of  war  may  be  set  at  liberty  on  parole  if 
the  laws  of  their  country  allow,  and,  in  such  cases,  they  are 
bound,  on  their  personal  honour,  scrupulously  to  fulfil,  both 
towards  their  own  Government  and  the  Government  by  whom 
they  were  made  prisoners,  the  engagements  they  have  contracted. 

In  sucli  cases  their  own  Government  is  bound  neither  to  re- 
quire of  nor  accept  from  them  any  service  incompatible  with  the 
parole  given. 

10  Protocol  5,  6,  of  the  Committee. 


PAROLE.  243 

Where  there  is  not  express  allowance  of  parole  by  the 
prisoner's  government  or  where  it  is  forbidden. — Two  cases 
are  likely  to  arise  not  dealt  with  in  this  article ;  the  first, 
where  the  law  of  the  country  of  the  prisoner  is  silent  as  to 
whether  he  may  parole  himself;  the  second,  where  the  law 
expressly  forbids  him  to  do  so.  In  the  first  case,  it  would 
seem  that,  if  his  government  subsequently  disapproves  his 
parole,  it  is  bound  to  give  him  the  opportunity  to  preserve 
his  good  faith  by  returning  to  captivity.  If  the  other  bel- 
ligerent refuses  to  receive  him,  he  is  released  from  his 
parole.  In  the  second  case,  the  prisoner's  government  would 
not  appear  to  be  bound  by  the  parole,  even  if  it  had  not 
communicated  to  the  other  government  the  law  or  order 
forbidding  parole,  since  governments  are  supposed  to  know 
each  other's  rules  in  such  matters.  The  American  Instruc- 
tions, however,  indicate  that  it  is  the  practice  for  belliger- 
ents to  communicate  to  each  other  their  regulations  con- 
cerning paroles,11  and  this  is  more  in  harmony  with  good 
faith.  In  either  case,  however,  the  parole  is  personal  and 
subjects  the  person  who  has  broken  it  to  punishment  by 
the  other  side  on  recapture. 

What  the  parole  includes. — Article  130  of  the  American 
Instructions  states  the  general  law  as  to  what  is  meant  by 
the  usual  pledge,  given  in  the  parole,  not  to  serve  against 
the  paroling  power  or  its  allies  during  the  existing  war 
unless  exchanged.  "This  pledge,"  so  reads  the  article,  "re- 
fers only  to  the  active  service  in  the  field,  against  the  parol- 
ing belligerent  or  his  allies  actively  engaged  in  the  same 
war.  These  cases  of  breaking  the  parole  are  patent  acts, 
and  can  be  visited  with  the  punishment  of  death ;  but  the 
pledge  does  not  refer  to  internal  service,  such  as  recruiting 
or  drilling  the  troops,  fortifying  places  not  besieged,  quel- 
ling civil  commotions,  fighting  against  belligerents  uncon- 
nected with  the  paroling  belligerents,  or  to  civil  or  diplo- 
matic service  for  which  the  paroled  officer  may  be  em- 
ployed." 

Should  the  parole  be  confined  to  officers. — It  has  been 
customary  in  the  American  and  in  the  British  army  to 
allow  paroles  to  be  given  only  through  an  officer  unless  in 
cases  of  extreme  hardship.  This  rule  seems  to  have  sur- 
vived the  times  when  "the  honor  of  a  gentleman"  was  sup- 

11  Order  No.    100,    Instructions,   etc.,    Sec.    132. 


244  PRISONERS   OF   "WAR. 

posed  to  be  confined  to  a  much  smaller  class  than  it  is  today, 
and  no  reason  appears  now  to  exist  why  soldiers  other  than 
officers  should  not  be  permitted  freely  to  give  their  parole, 
at  least  when  no  officers  are  imprisoned  with  them.  In 
France,  no  such  distinction  between  the  officers  and  the 
men  seems  to  be  made.12 

H  XI.  A  prisoner  of  war  can  not  be  compelled  to  accept  his 
liberty  on  parole;  similarly  the  hostile  Government  is  not 
obliged  to  accede  to  the  request  of  the  prisoner's  to  be  set  at 
liberty  on  parole. 

Parole  not  compulsory. — Parole  is  a  contract  entered  into 
between  the  prisoner  and  the  government  which  has  him 
in  its  power.  Like  other  contracts,  it  is  a  voluntary  agree- 
ment. Persons  can  not  be  compelled  to  agree  to  abstain 
from  fighting  for  their  country,  nor  can  a  belligerent  be 
under  any  duty  to  run  the  risk  of  such  a  promise  being 
broken.  Article  128  of  the  American  Instructions  declares 
the  general  law  when  it  says : 

"No  paroling  on  the  battlefield,  no  paroling  of  entire 
bodies  of  troops  after  a  battle,  and  no  dismissal  of  large 
numbers  of  prisoners,  with  a  general  declaration  that  they 
are  paroled,  is  permitted  or  of  any  value." 
^  H  XII.  Prisoners  of  war,  liberated  on  parole  and  recaptured 
bearing  arms  against  the  Government  to  whom  they  had  pledged 
their  honour,  or  against  the  allies  of  that  Government  forfeit 
their  right  to  be  treated  as  prisoners  of  war,  and  can  be  brought 
before  the  Courts. 

Desirability  of  a  trial  for  all  violations  of  the  law  of  war. 
— Probably  a  negative  can  be  implied  so  that  a  prisoner 
charged  with  breach  of  his  parole  cannot  be  punished  with- 
out a  trial  by  the  military  courts,  a  principle  which,  it  may 
be  hoped,  will  become  universal  in  dealing  with  offenses 
against  the  laws  of  war. 

H  XIII.  Individuals  who  follow  an  army  without  directly 
belonging  to  it,  such  as  newspaper  correspondents  and  reporters, 
sutlers  and  contractors,  who  fall  into  the  enemy's  hands  and 
whom  the  latter  thinks  ft  to  detain,  are  entitled  to  be  treated 
as  prisoners  of  war,  provided  they  are  in  possession  of  a  cer- 
tificate from  the  military  authorities  of  the  army  which  they 
were  accompanying. 

Usual  course  towards  those  who  follow  the  army,  but  are 

12  Quelle,  Precis  des   Lois   dp  la   Guerre,   I,   p.   208. 


BUREAU  OF  INFORMATION.  245 

not  a  part  of  it.— As  a  general  rule  it  is  not  likely  that 
such  persons  will  be  detained,  unless,  as  in  the  case  of  re- 
porters, their  conduct  has  been  such  as  to  incur  the  indig- 
nation of  the  capturing  belligerent.  Military  reasons  may, 
however,  often  render  immediate  release  inconvenient,  or 
make  their  immediate  return  to  the  camp  of  the  enemy 
unwise.  The  necessity  of  obtaining  protection  against  the 
noxious  characters  who  infest  armies,  and  the  possibility 
of  combatants  escaping  in  the  guise  of  noncombatants,  make 
the  certificate  of  identification  necessary. 

H  XIV.  An  inquiry  office  for  prisoners  of  war  is  instituted 
on  the  commencement  of  hostilities  in  each  of  the  belligerent 
States,  and,  when  necessary,  in  neutral  countries  which  have 
received  belligerents  in  their  territory.  It  is  the  function  of 
this  office  to  reply  to  all  inquiries  about  the  prisoners.  It  re- 
ceives from  the  various  services  concerned  full  information  re- 
specting internments  and  transfers,  releases  on  parole,  exchanges, 
escapes,  admissions  into  hospitals,  deaths,  as  well  as  other  in- 
formation necessary  to  enable  it  to  make,  out  and  Iceep  up  to 
date  an  individual  return  for  each  prisoner  of  war.  The  office 
must  state  in  this  return  the  regimental  number,  name  and  sur- 
name, age,  place  of  origin,  rank,  unit,  wounds.,  date  and  place 
of  capture,  internment,  wounding  and  death,  as  well  as  any  ob- 
servations of  a  special  character.  The  individual  return  shall 
be  sent  to  the  Government  of  the  other  belligerent  after  the  con- 
clusion of  peace. 

It  is  likewise  the  function  of  the  inquiry  office  to  receive  and 
collect  all  objects  of  personal  use,  valuable  letters,  etc.,  found  on 
the  field  of  battle  or  left  by  prisoners  who  have  been  released 
on  parole,  or  exchanged,  or  who  have  escaped,  or  died  in  hos- 
pitals or  ambulances,  and  to  forward  them  to  those  concerned. 

Articles  XIV-XX,  the  work  of  M.  Romberg,  not  a  part  of 
the  Brussels  Declaration. — The  adoption  of  Articles  XIV- 
XX  was  largely  due  to  the  unremitting  efforts  of  M.  Rom- 
berg, who,  as  head  of  the  Brussels  committee  for  the  care 
of  prisoners  of  war  during  the  Franco-German  War,  had 
seen  the  need  of  stipulations  of  this  kind.  They  were 
brought  before  the  Brussels  Conference,  but  were  there 
regarded  as  innovations  and  so  beyond  the  scope  of  the 
Conference.  The  Conference,  however,  recommended  them 
to  the  attention  of  the  various  governments,  and  when  they 
were  presented  by  the  Belgian  delegate  at  The  Hague,  they 


246  PRISONERS   OF    WAR. 

were  adopted  with  comparatively  little  discussion.  The 
last  two  sentences  of  the  first  paragraph  detailing  the  par- 
ticulars to  be  kept  on  each  card  and  requiring  the  card  to 
be  delivered  to  the  other  belligerent  at  the  end  of  the  war 
are  new.  They  embody  the  practice  followed  by  the  Jap- 
anese in  their  war  with  Russia.  The  inclusion  of  "releases 
on  parole,  exchanges,  escapes"  in  the  information  to  be 
obtained  by  the  bureau  and  of  prisoners  who  have  been 
"released  on  parole,  or  exchanged,  or  who  have  escaped" 
among  those  wrhose  valuables  are  to  be  received,  collected 
and  forwarded,  is  also  the  work  of  the  Second  Conference. 

H  XV.  Relief  societies-  for  prisoners  of  war,  which  are  prop- 
erly constituted  in  accordance  ivith  the  laws  of  their  country 
and  with  the  object  of  serving  as  the  channel  for  charitable 
effort  shall  receive  from  the  belligerents,  for  themselves  and 
their  duly  accredited  agents  every  facility  for  the  efficient  per- 
formance of  their  humane  task  within  the  bounds  imposed  by 
military  necessities  and  administrative  regulations.  Agents  of 
these  societies  may  be  admitted  to  the  places  of  internment  for 
the  purpose  of  distributing  relief,  as  also  to  the  halting  places 
of  repatriated  prisoners,  if  furnished  with  a  personal  permit  by 
the  military  authorities,  and  on  giving  an  undertaking  in  writ- 
ing to  comply  with  all  measures  of  order  and  police  which  the 
latter  may  issue. 

H  XVI.  Inquiry  offices  enjoy  the  privilege  of  free  postage. 
Letters,  money  orders  and  valuables,  as  well  as  parcels  by  post, 
intended  for  prisoners  of  war,  or  dispatched  by  them,  shall  be 
exempt  from  all  postal  duties  in  the  countries  of  origin  and 
destination,  as  well  as  in  the  countries  they  pass  through. 

Presents  and  relief  in  kind  for  prisoners  of  war  shall  be  ad- 
mitted free  of  all  import  or  other  duties,  as  well  as  of  payments 
for  carriage  by  the  State  railways. 

Relaxation  of  charges  on  letters  and  parcels  sent  to  pris- 
oners of  war. — During  the  Franco-German  "War,  many  of 
the  things  sent  to  relieve  the  condition  of  prisoners  never 
reached  them  on  account  of  the  charges  imposed.  The  rep- 
resentatives of  the  powers  at  The  Hague  felt  that  the  re- 
laxation of  these  charges  would  be  insignificant  as  com- 
pared with  the  general  expenses  of  the  war,  and  that  the 
governments  could  well  afford  it  in  view  of  the  great  good 
likely  to  result. 

H  XVII.     Officers  taken  prisoners  shall  receive  the  same  rate 


officer's  pay.  247 

of  pay  as  officers  of  corresponding  rani-  in  the  country  where 
they  are  detained,  the  amount  to  be  ultimately  refunded  by  their 
own  Government. 

Officers  to  receive  pay  in  force  in  captor's  army. — The 
rule  laid  down  in  the  old  convention  was  that  officers  taken 
prisoners  should  be  paid  their  full  salaries  by  the  captor, 
but  the  consensus  of  opinion  for  some  time  has  been  in 
favor  of  the  rule  laid  down  in  this  article. 

H  XVIII.  Prisoners  of  war  shall  enjoy  complete  liberty  in 
the  exercise  of  their  religion,  including  attendance  at  the  serv- 
ices of  whatever  Church  they  may  belong  to,  on  the  sole  condi- 
tion that  they  comply  with  the  measures  of  order  and  police 
issued  by  the  military  authorities. 

H  XIX.  The  wills  of  prisoners  of  war  are  received  or  drawn 
up  in  the  same  way  as  for  soldiers  of  the  national  army. 

The  same  rules  shall  be  observed  regarding  death  certificates 
as  well  as  for  the  burial  of  prisoners  of  war,  due  regard  being 
paid  to  their  grade  and  rank. 

H  XX.  After  the  conclusion  of  peace,  the,  repatriation  of 
prisoners  of  war  shall  be  carried  out  as  quickly  as  possible. 

To  what  extent  peace  is  an  amnesty. — Prisoners  may  be 
detained  after  the  conclusion  of  peace  to  serve  out  imprison-  v[ 
ment  imposed  for  common  law  crimes  and  possibly  even 
for  disciplinary  offenses  imposed  when  the  war  is  "plainly 
nearing  its  end"  although  the  latter  is  doubtful,13  and  or- 
dinarily not  likely  to  be  practiced.  Offenses  which  may  be 
properly  said  to  arise  out  of  the  war  are  wiped  out  by  the 
peace  and  especially  offenses  against  the  orders  of  the  oc- 
cupant, but  not  in  themselves  violations  of  the  laws  of  war. 
But  the  fact  that  an  offense  has  been  committed  with  a 
patriotic  motive  does  not  necessarily  remove  it  from  the 
category  of  common  law  crimes. 

Exchange. — The  exchange  of  prisoners  of  war  is  a  sub- 
ject not  dealt  with  in  The  Hague  Regulations.  Although 
not  obligatory,  it  has  become  a  usage  of  modern  wars.  Car- 
tels, or  agreements,  are  entered  into  for  carrying  it  out, 
and  commissaries  are  permitted  to  reside  in  the  respective 
countries  to  facilitate  exchanges  and  to  see  that  the  terms 
of  the  cartels  are  observed.  T^The  general  rule  is  that  of 
equality,  "rank  for  rank,  wounded  for  wounded."  Where 
it  is  desirable  to  exchange  prisoners  of  different  rank,  those 

13  VVestlake,    II    Internation.il    Law,    67. 


V 


248  PRISONERS   OF    WAR. 

of  superior  rank  are  exchanged  for  a  greater  number  of 
inferior  rank.  As  it  is  claimed  that  exchanged  prisoners 
should  not  fight  again  during  the  same  war  unless  it  is 
expressly  stipulated  to  the  contrary,  it  is  best  to  make  ex- 
press stipulations  in  this  regard  in  the  cartel.14 

14  Hall,  International  Law,  p.  430. 


* 


THE  SICK,  WOUNDED  AND  SHIPWRECKED.  249 


CHAPTER  V. 

THE  SICK,   WOUNDED  AND  SHIPWRECKED.* 

H  XXI.  The  obligations  of  belligerents  -with  regard  to  the 
sick  and  wounded  are  governed  by  the  Geneva  Convention. 

THE    SICK    AND    WOUNDED. 

Gr  I.     Officers,  soldiers  and  other  persons  officially  attached    % 
to  armies  who  are  sick  or  wounded  shall  be  respected  and  cared 
for,   without   distinction   of  nationality,   by   the   belligerent   in 
whose  power  they  are.  ^ 

However,  a  belligerent,  when  compelled  to  leave  his  wounded  ' 
in  the  hands  of  the  enemy,  shall  leave  with   them,  so  far  as 
military  conditions  permit,  a  portion  of  the  personnel  and  ma- 
teriel of  his  sanitary  service  to  assist  in  caring  for  them. 

The  Geneva  Convention. — Paragraph  1  entitles  to  the 
privileges  of  this  convention  all  the  combatant  and  noncom- 
batant  members  of  the  military  forces  enumerated  in  H  I- 
III,  as  well  as  all  other  members  of  the  military  forces  not 
enumerated  there,  if  such  there  be,  who  are  entitled  to  the 
treatment  of  prisoners  of  war  by  the  unwritten  law,1  and  also 
those  individuals  not  directly  belonging  to  the  military 
force  mentioned  in  H  XIII. 

"These  clauses  are  very  broadly  stated,  and  are  intended 
to  apply  not  only  to  the  case  where  a  successful  belligerent 
occupies  the  battlefield,  but  also  to  a  case  in  which  both  of 
the  opposing  armies  occupy  new  positions  at  some  distance 
from  the  field  in  which  the  losses  were  incurred."2 

Unsuccessful  belligerent  to  leave  material  behind.— Para- 
graph 2  is  new  and  of  vital  importance.  It  would  clearly 
be  the  height  of  injustice  to  require  the  occupant  of  the 
battlefield  to  strip  itself  in  caring  for  the  sick  and  wounded 
of  its  adversary  without  the  obligation  on  the  part  of  the 

*  It  is  a  matter  of  regret  that  notice  of  the  publication  of  the 
Manuel  de  la  Croix-Rouge,  by  Fauchille  and  Politis,  Paris,  190S,  did 
not  reach  the  writer  in  time  to  make  it  available  for  this  work. 

i  See  supra,  p.  231. 

2  Report  of  the  United  States  Delegation,  p.   16. 


4 


250  THE  SICK,  WOUNDED  AND  SHIPWRECKED. 

latter  "to  make  reasonable  provision  for  the  care  and  treat- 
ment of  the  wounded  who  are  left  behind."3 

G  II.  Subject  to  the  care  that  must  be  taken  of  them  under 
the  preceding  article,  the  sick  and  wounded  of  an  army  who  fall 
into  the  power  of  the  other  belligerent  become  prisoners  of  war, 
and  the  general  rules  of  international  law  in  respect  to  prisoners 
become  applicable  to  them. 

The  belligerents  remain  free,  however,  to  enter  into  such 
mutual  stipulations  in  regard  to  sick  and  wounded  prisoners  as 
they  may  deem  appropriate.  They  shall  have  special  authority 
to  agree: 

1.  To  mutually  restore  the  sick  and  wounded  left  on  the 
field  of  battle  after  an  engagement. 

2.  To  send  back  to  their  own  country  the  sick  and  wounded 
who  have  recovered,  or  who  are  in  a  condition  to  be  transported, 
and  whom  they  have  no  desire  to  retain  as  prisoners. 

3.  To  send  the  sick  and  wounded  of  the  enemy  to  a  neutral 
state,  with  its  consent  and  on  condition  that  they  shall  be  in- 
terned until  the  close  of  hostilities. 

Sick  and  wounded  falling  into  the  power  of  the  enemy- 
are  prisoners  of  war. — The  old  convention  left  to  the  un- 
written law  the  status  of  the  sick  and  wounded  who  fall 
into  the  hands  of  the  enemy.  This  was  undesirable.  It 
left  open  to  argument  the  contention  that  they  were  "neu- 
tral," and  thus  inspired  hopes  of  release  and  of  freedom 
from  military  supervision  unwarrantable  in  prisoners  of 
war  and  at  the  same  time  rendered  it  doubtful  whether  or 
not  as  prisoners  of  war  they  were  entitled  to  the  privileges 
of  that  class.  But  whereas  the  old  convention  had  left  the 
question  an  open  one,  Article  V  of  the  Additional  Articles 
of  1868  gave  positive  support  to  the  view  of  the  exceptional 
position  of  the  sick  and  wounded  by  requiring  the  sending 
back  of  all  soldiers,  whether  incurably  wounded  or  not,  with 
the  exception  of  officers  whose  detention  might  be  import- 
ant to  the  fate  of  arms,  on  condition  of  their  not  again 
bearing  arms  during  the  continuance  of  the  war. 

Special  authority  to  enter  into  stipulations. — Article  VI 
of  the  old  convention  had  provided  that  commanders-in- 
chief  should  have  the  power  to  deliver  immediately,  to  the 
outposts  of  the  enemy,  soldiers  who  had  been  wounded  in 
an  engagement,  when  circumstances  permitted  this  to  be 

3  ibid. 


THE   SICK   AND  WOUNDED.  251 

done,  and  with  the  consent  of  both  parties,  that  those  who 
were  recognized  after  their  wounds  had  healed,  as  incapable 
of  serving,  should  be  sent  back  to  their  own  country,  and 
that  others  might  also  be  sent  back,  on  condition  of  not 
again  bearing  arms  during  the  continuance  of  the  war. 
Clause  1  of  paragraph  2  of  the  present  article,  it  will  be 
seen,  follows  closely  the  first  of  the  above  provisions,  but 
says  nothing  of  agreeing  in  the  cartels  that  the  sick  and 
wounded  shall  be  delivered  "immediately"  or  "to  the  out- 
posts of  the  enemy."  The  second  of  the  above  provisions 
of  the  old  convention  that  those  recognizable  as  incapable 
of  serving  shall  be  sent  back,  was  omitted,  because  of  the 
difficulty  of  determining  whether  a  wounded  officer  or  sol- 
dier is  incapable  of  serving  or  not.  An  officer  incapable  of 
active  service  may  be  of  the  greatest  assistance  in  direction 
and  advice.  Accordingly  clause  2  of  the  paragraph  2  of 
the  present  article  was  substituted.  As  a  belligerent  will 
generally  wish  to  send  back  those  who  can  be  of  no  use  to 
its  adversary,  clause  2  will  serve  much  the  same  end  as  the 
old  provision  without  giving  chance  of  recriminations  when 
an  officer  no  longer  capable  of  active  service  is  retained  as 
a  prisoner  because  of  superior  ability  along  other  lines. 
The  third  provision  of  the  old  convention  that  the  sick  and 
wounded  in  general  may  be  sent  back  on  parole  is  now 
covered  for  all  prisoners  by  H  X  and  was  omitted  alto- 
gether. 

Clause  3  of  paragraph  2  supplements  Article  XIV  of  the 
Convention  respecting  the  Eights  and  Duties  of  Neutral 
Powers  and  Persons  in  case  of  War  on  Land  and  like  it  is 
favorable  to  the  sick  and  wounded  in  that  it  allows  the 
neutral  power  to  relieve  a  belligerent  of  his  sick  and 
wounded  prisoners  without  being  guilty  of  unneutral  con- 
duct. 

It  is  to  be  noticed  that  in  the  present  article  it  is  the 
"belligerents"  to  whom  power  is  given  to  enter  into  these 
agreements  while  in  Article  VI  of  the  old  convention  it 
was  the  "commander-in-chief"  to  whom  it  was  entrusted. 
The  change  must  be  taken  to  suggest  that  it  may  be  desir- 
able that  the  power  to  enter  into  these  cartels  be  not  con- 
fined to  commanders-in-chief.  The  United  States  Delega- 
tion use  the  broader  term  "commanding  generals."* 

*  Report  of   United   States   Delegation,   p.    17. 


252  THE  SICK,  WOUNDED  AND  SHIPWRECKED. 


G  III.  After  every  engagement  the  belligerent  who  remains 
in  possession  of  the  field  of  battle  shall  take  measures  to  search 
for  the  wounded  and  to  protect  the  wounded  and  dead  from 
spoliation  and  ill  treatment. 

He  will  see  that  a  careful  examination  is  made  of  the  bodies 
of  the  dead  prior  to  their  interment  or  incineration. 

Policing  of  the  field  of  battle. — Neither  of  the  provisions 
of  this  article  is  to  be  found  in  the  old  convention.  Noth- 
ing" is  said  there  of  policing  the  field  of  battle  or  of  taking 
measures  for  the  protection  of  the  dead,  and  it  was  feared 
at  the  late  conference  that  the  first  paragraph  might  be 
interpreted  as  a  guarantee  against  all  unlawful  acts  on  the 
field  of  battle.  It  was  clearly,  however,  not  the  purpose 
of  this  article  to  make  the  occupant  an  insurer  against  all 
crime  on  the  battlefield,  but  merely  to  indicate  his  duty 
to  take  all  steps  in  his  power  to  minimize  it  as  far  as  pos- 
sible. This  is  imposing  no  new  duty,  but  the  stories  fa- 
miliar to  all  of  the  ghouls  of  battlefield  show  how  inade- 
quate the  policing  of  this  kind  has  been  in  the  past. 

Examination  of  the  dead. — As  to  the  examination  of  the 
dead  it  was  felt  by  some  that  a  doctor's  certificate  of  the 
fact  of  death  as  provided  for  in  France  should  be  required, 
but  it  was  felt  best  to  leave  the  details  of  the  examination 
to  each  belligerent.  It  was  also  urged  that  the  soldiers 
should  be  identified  in  some  way  as  by  a  number,  button 
or  medallion  in  accordance  with  actual  practice  in  more 
armies  than  one,  but  this  was  rejected.4  Its  advantage  as  a 
means  of  identifying  the  dead  is  evident,  but  to  require  it 
by  international  agreement  would  be  likely  to  result  prac- 
tically in  adding  as  a  requisite  for  belligerent  character  the 
very  requirement  which  was  so  bitterly  rejected  at  Brus- 
sels and  The  Hague.5 
\  G-  IV.  As  soon  as  possible  each  belligerent  shall  forward  to 
the  authorities  of  their  country  or  army  the  military  tokens,  or 
badges  of  identification,  found  upon  the  bodies  of  the  dead,  to- 
gether ivith  a  list  of  the  sick  and  wounded  taken  in  charge  by 
him. 

Belligerents  will  keep  each  other  mutually  advised  of  intern- 
ments and  transfers,  together  with  admissions  to  hospitals  and 

4  Delpech,  La  Conference  de  Revision  de  la  Convention  de  Geneve, 
13  R.  G.  D.   I.  P.,  673. 
s  See  supra,  pp.  104,  231. 


THE   SICK  AND  WOUNDED.  253 

deaths  which  occur  among  the  sick  and  wounded  in  their  hands. 
They  will  collect  all  valuable  personal  belongings,  letters,  etc., 
which  are  found  upon  the  field  of  battle,  or  have  been  left  by 
the  wounded,  or  by  those  who  have  died  in  sanitary  formations 
or  other  establishments,  for  transmission  to  interested  persons 
through  the  authorities  of  their  own  country. 

The  provisions  of  this  article,  supplement  H  XIV  and 
H  XVI6  although  they  go  somewhat  further  in  specifying 
that  the  property  and  information  shall  be  forwarded  "as 
soon  as  possible." 

G  V.  Military  authority  may  make  an  appeal  to  the  chari- 
table zeal  of  the  inhabitants  to  receive,  and  under  his  super- 
vision, to  care  for  the  sick  and  wounded  of  the  armies,  by  grant- 
ing to  persons  responding  to  such  appeals  special  protection  and 
certain  im  m unities. 

Appeal  to  the  charity  of  the  inhabitants. — This  article 
corresponds  to  Article  V  of  the  old  convention,  and  Addi- 
tional Article  IV.  Article  V  of  the  old  convention  had  pro- 
vided that  any  inhabitant  who  should  have  entertained 
wounded  troops  in  his  house  should  be  exempted  from  the 
quartering  of  troops  as  well  as  from  part  of  the  contribu- 
tions of  war  which  might  be  imposed.  This  granted  more 
than  military  necessity  would  admit,  and  so  in  Additional 
Article  IV  of  1868  it  w7as  provided  that  in  the  quartering 
of  troops  and  imposition  of  contributions  account  should 
be  taken  of  the  zeal  of  the  inhabitants  in  an  equitable  man- 
ner only.  It  will  be  noticed  that  the  present  article  is  mere- 
ly an  authority  to  the  commander  to  make  appeals  to  the 
inhabitants  by  granting  "special  protection  and  certain  im- 
munities" Avithout  specifying  what  those  immunities  are. 

The  United  States  Delegation  in  their  report  say:  "It 
was  also  recognized  that  the  methods  which  now  prevail 
in  the  treatment  of  the  sick  and  wounded  no  longer  permit 
their  isolation  in  scattered  dwellings  and  outbuildings, 
which  are  difficult  of  access  and  in  which  sanitary  condi- 
tions cannot  be.  controlled.  For  that  reason  the  collection 
of  patients  in  tents  and  suitable  hospital  buildings  under 
the  most  advanced  conditions  in  respect  to  sanitation  and 
antiseptic  treatment  was  strongly  favored  by  the  confer- 
ence.    7 

6  See  supra,  pp.  245,  246. 

7  P.  17. 


254  THE  SICK,  WOUNDED  AND  SHIPWRECKED. 

SANITARY    FORMATIONS    AND    ESTABLISHMENTS. 

G  VI.  Movable  sanitary  formations  (i.  e.,  those  which  are 
intended  to  accompany  armies  in  the  field)  and  the  fixed  estab- 
lishments belonging  to  the  sanitary  service  shall  be  protected 
and  respected  by  belligerents. 

Civil  hospitals. — By  H  LVP  all  property  devoted  to  chari- 
table purposes,  even  though  belonging  to  the  state  is  treated 
as  private  property.  This  made  it  unnecessary  to  provide 
for  such  permanent  hospitals  as  are  intended  for  the  needs 
of  the  civil  population  and  operate  in  peace  as  well  as  in 
war.  The  protection  accorded  them  is  even  greater  than 
that  accorded  to  the  fixed  establishments  belonging  to  the 
sanitary  service  for  the  latter  remain  subject  to  the  laws 
of  war,  as  modified  by  G  XV,  as  public  property  devoted  to 
military  purposes  while  civil  hospitals  are  subject  only  to 
the  right  of  requisition  to  which  all  private  property  is 
subject  and  which  in  their  case  should  be  made  use  of  only 
under  pressing  necessity. 

Respect  due  to  movable  sanitary  formations. — This  article 
settles  the  question  so  much  debated  at  the  Brussels  Confer- 
ence as  to  what  are  meant  by  movable  sanitary  formations 
as  contrasted  with  the  fixed  establishments  which  are  still 
subject  in  large  part  to  the  unwritten  laws  of  war.  The 
old  convention  used  the  term  "ambulance"  and  in  Addi- 
tional Article  III  this  term  was  interpreted  to  mean  "field 
hospitals  and  other  temporary  establishments,  which  follow 
the  troops  on  the  field  of  battle  to  receive  the  sick  and 
wounded."  It  was  urged  by  the  German  delegate  at  Brus- 
sels that  this  enlarged  the  meaning  of  the  term  whereas  it 
was  desirable  to  restrict  it  or  do  away  with  the  exemption  of 
the  material  altogether.  But  he  was  apparently  alone  in 
his  contention,  and  as  will  be  seen  by  a  comparison  of  the 
two  articles  the  idea  of  Additional  Article  III  was  em- 
bodied in  the  present  article. 

Not  entitled  to  protection  merely  "so  long  as  sick  or 
wounded  may  be  therein." — A  significant  change  from  Ar- 
ticle I  of  the  old  convention  is  that  the  qualification  that 
the  sanitary  formations  will  be  protected  and  respected  "so 
long  as  any  sick  or  wounded  may  be  therein"  has  been 
dropped.     This  made  it  possible  to  subject  to  capture  am- 

s  See  infra,  p.  330. 


SANITARY    FORMATIONS    AND    ESTABLISHMENTS.  255 

bulances  which  had  completed  their  duty  and  were  return- 
ing to  their  army  merely  because  they  happened  to  have  no 
sick  and  wounded  in  them  at  the  time.  Practice,  however, 
seems  to  have  been  more  liberal  than  the  strict  language 
of  the  convention  required9  and  the  present  article  was 
drafted  in  accordance  with  the  practice.  M.  Moynier  is  of 
the  opinion  that  the  practice  of  the  Franco-German  War 
went  even  further  than  this  and  exempted  depots  of  sani- 
tary supplies.  Accordingly  in  his  Project  of  Revision  he 
proposed  to  assimilate  depots  of  sanitary  material  to  mov- 
able sanitary  formations.10  Insofar  as  such  depots  are  mov- 
able sanitary  formations  following  the  army  in  its  opera- 
tions in  order  to  keep  the  ambulances  and  field  hospitals 
properly  supplied  it  would  seem  that  his  suggestion  is  a 
valuable  one,11  but  the  Geneva  Conference  did  not  follow 
him  in  assimilating  depots  of  sanitary  supplies  as  such  to 
movable  sanitary  formations,  so  that  it  would  appear  that 
when  fixed  they  are  subject  to  the  laws  of  war,  at  any  rate 
to  the  same  extent  as  other  fixed  sanitary  establishments. 

G  VII.  The  protection  due  to  sanitary  formations  and  es- 
tablishments ceases  if  they  are  used  to  commit  acts  injurious  to 
the  enemy. 

Protection  conditioned  on  nonbelligerent  action. — This  ar- 
ticle states  more  clearly  than  Article  I  of  the  old  convention 
that  the  protection  of  the  convention  is  conditioned  on  ab- 
stention from  belligerent  action.  If  the  sanitary  formation 
is  used  to  quarter  troops,  as  a  storehouse  for  military  sup- 
plies or  employed  as  a  base  of  operations  or  for  any  other 
military  purpose,  its  privileged  character  ceases  and  if  this 
is  done  treacherously  it  subjects  the  offenders  to  the  mili- 
tary penal  laws. 

G  VIII.  A  sanitary  formation  or  establishment  shall  not  be 
deprived  of  the  protection  accorded  by  article  VI  by  the  fact 
that: 

1.  The  personnel  of  a  formation  or  establishment  is  armed 
and  uses  its  arms  in  self-defense  or  in  defense  of  its  sicJc  and 
wounded. 

2.  In  the  absence  of  armed  hospital  attendants,  the  forma- 

s  Moynier,  La  Convention  de  Geneve  Pendant  la  Guerre  Franco  Alle- 
mande,  p.  2G. 

io  Article  17,  Gillot,  p.  362. 

nGillot,  p.  271;  Delpech,  13  P.  G.  D.  I.  P.,  702. 


256  THE  SICK,  WOUNDED  AND  SHIPWRECKED. 

tion  is  guarded  by  an  armed  detachment  or  by  sentinels  regu- 
larly established. 

3.  Arms  or  cartridges,  taken  from  the  wounded  and  not  yet 
turned  over  to  the  proper  authorities,  are  found  in  the  forma- 
tion or  establishment. 

Sanitary  formation  may  be  defended. — This  article  is  the 
necessary  complement  of  the  preceding.  Sanitary  forma- 
tions must  not  be  used  to  commit  acts  injurious  to  the 
enemy,  but  it  would  be  intolerable  if  the  personnel  of  a 
formation  should  be  compelled  to  go  unarmed  or  without 
the  protection  of  a  picket  in  order  to  be  entitled  to  the  pro- 
tection of  the  convention.  The  unsettled  condition  of  af- 
fairs following  every  battle  makes  it  imperative  that  the 
personnel  of  sanitary  formations  should  be  so  armed  or 
guarded  as  to  ensure  the  safety  of  themselves  and  of  those 
entrusted  to  their  care.  The  last  paragraph  was  added  as 
a  result  of  the  experience  of  the  South  African  War.12 


PERSONNEL. 

X  Gr  IX.  The  personnel  exclusively  charged  with  the  removal, 
transportation  and  treatment  of  the  sick  and  wounded,  as  well 
as  with  the  administration  of  sanitary  formations  and  establish- 
ments, and  the  chaplains  attached  to  armies  shall  be  respected 
and  protected  under  all  circumstances.  If  they  fall  into  the 
hands  of  the  enemy  they  shall  not  be  regarded  as  prisoners  of 
war. 

Detail  of  personnel  left  to  the  Governments. — It  was 
thought  best  by  some  to  be  more  specific  in  the  enumeration 
of  the  sanitary  personnel,  but  the  varying  organization  of 
the  armies  of  different  countries  rendered  this  undesirable 
so  that  the  detailed  application  of  this  article  must  be 
worked  out  by  the  governments  for  themselves.  It  would 
seem  that  the  domestics  of  the  sanitary  personnel  should 
receive  the  same  treatment  as  themselves,  but  this  is  sub- 
ject to  some  doubt.13  In  according  the  protection  of  this 
article  to  the  personnel  of  the  guard  of  sanitary  formations, 
the  Geneva  Conference  made  what  would' seem  to  be  a  very 
notable  advance  over  the  Brussels  Conference.     It  would 

izDelpech,  13  R.  G.  D.  I.  P.,  706. 
is  Gillot,  p.  207. 


PERSONNEL.  25? 

seem  the  only  adequate  way  of  safeguarding  the  siek  and 
wounded  in  the  troublous  times  of  retreat  and  pursuit.14 

Distinction  between  sanitary  personnel  and  those  tem- 
porarily aiding  the  sick  and  wounded. — The  provision  that 
the  sanitary  personnel  proper  shall  include  only  those  who 
are  "exclusively"  charged  with  the  care  of  the  sick  and 
wounded  was  added  to  exclude  from  the  sanitary  personnel 
the  litter-bearers  (brancardiers) ,  etc.,  who  are  generally 
taken  for  the  time  being  from  the  active  military  service. 
When  they  form  a  distinct  and  fixed  branch  of  the  sani- 
tary service,  as  in  Switzerland  and  Austria,  they  of  course 
meet  the  requirements  of  the  article.15  It  is  to  be  observed, 
however,  although  these  temporary  litter-bearers  do  not 
form  part  of  the  sanitary  personnel  any  more  than  the  guard 
of  sanitary  formations  does,  that  like  the  latter,  they  are  not 
to  be  retained  as  prisoners,  but  are  to  be  sent  back  under 
G  XIV  and  XVII. 

G  X.  The  personnel  of  volunteer  aid  societies,  duly  recog=- 
nized  and  authorized  by  their  respective  governments,  who  arc 
employed  in  the  sanitary  formations  and  establishments  of 
armies,  are  assimilated  to  the  personnel  described  in  the  preced- 
ing article,  upon  condition  that  the  said  personnel  shall  be  sub- 
ject to  military  laws  and  regulations. 

Each  state  shall  make  known  to  the  other,  either  in  time  of 
peace  or  at  the  opening,  or  during  the  progress  of  hostilities — 
in  any  case,  before  actual  employment — the  names  of  the 
societies  which  it  has  authorized  to  render  assistance,  under  its 
responsibility,  in  the  official  sanitary  service  of  its  armies. 

Volunteer  aid  societies. — This  article  is  a  notable  advance 
over  the  old  convention,  which  did  not  recognize  volunteer 
societies  at  all.  The  possible  interference  with  military  af- 
fairs which  was  feared  from  the  recognition  of  these  socie- 
ties is  avoided  by  the  provisions  that  they  must  be  duly  au- 
thorized by  their  respective  governments  and  be  subject  to 
military  law  and  regulations,  and  by  making  the  govern- 
ments authorizing  them  responsible  for  their  conduct  in 
the  same  way  that  it  is  for  its  official  personnel. 

Function  in  case  of  floods,  fires,  earthquakes,  etc. — "The 
details  of  organization  of  these  societies  together  with  the 
preparation  of  regulations  governing  their  activity  in  the 

i4Gillot,  p.  207. 

isDelpech,  13  R.  G.  D.  I.  P.,  684. 

17 


258  THE  SICK,  WOUNDED  AND  SHIPWRECKED. 

field  and  fixing  their  relations  with  the  sanitary  department 
of  the  army,  wrere  wisely  left  to  the  discretion  of  the  indi- 
vidual powers.  It  is  proper  to  observe,  however,  that  the 
furnishing  of  relief  by  such  associations  to  communities 
suffering  in  time  of  peace  from  pestilence  or  famine,  or 
from  the  visitation  of  floods,  fires  or  earthquakes,  will  al- 
ways constitute  a  proper  subject  for  their  humanitarian  en- 
deavor; and  the  use  or  display  of  the  insignia  of  the  con- 
vention upon  such  occasions  does  not  come  within  the  pro- 
hibitory requirements  which  are  embodied  in  articles  XXVII 
and  XXVIII  of  the  new  convention. 

Field  of  activity  generally  confined  to  second  line. — "It 
was  the  sense  of  the  committee  that  the  field  of  activity  of 
these  societies  should  be  restricted  to  the  second  line  of 
sanitary  formations  and  to  the  fixed  hospitals  established 
at  the  bases  of  supply  in  which  the  sick  and  wounded  are 
habitually  collected  for  permanent  treatment;  but,  as  the 
control  and  supervision  of  their  philanthropic  activity  is 
vested  by  the  terms  of  the  convention  in  the  state  which 
authorizes  them,  it  was  not  deemed  best  to  insert  such  a 
stipulation  in  the  text  of  an  international  agreement."16 

G  XI.  A  recognized  society  of  a  neutral  state  cannot  lend 
the  services  of  its  sanitary  personnel  and  formations  to  a  bel- 
ligerent except  with  the  prior  consent  of  its  own  government 
and  the  authority  of  such  belligerent.  The  belligerent  who  has 
accepted  such  assistance  is  required  to  notify  the  enemy  before 
■making  any  use  thereof. 

Neutral  societies. — The  remarks  under  Article  X  apply  to 
this  article  also.  It  would  seem  beyond  question  that  the 
belligerent  state  in  authorizing  the  neutral  ambulance  to 
come  to  its  assistance  assumes  responsibility  for  its  conduct 
and  that  the  neutral  ambulance  is  subject  to  its  laws  and 
regulations  in  the  same  way  as  if  it  were  organized  by  its 
own  citizens. 

G  XII.  Persons  described  in  articles  IX,  X  and  XI  will  con- 
tinue in  the  exercise  of  their  functions  after  they  have  fallen 
into  the  power  of  the  enemy  and  under  his  direction. 

When  their  cooperation  is  no  longer  indispensable  they  will 
be  sent  bach  to  their  army  or  country,  within  such  period  and 
by  such  route  as  may  accord  with  military  necessity. 

is  Report  of  the  United  States  Delegation,  p.  16. 


PERSONNEL.  259 

They  will  carry  with  them  such  effects,  instruments,  arms  and 
horses  as  are  their  private  property. 

Duty  of  personnel  to  remain. — Paragraph  1  of  this  article 
is  in  accord  with  Additional  Article  I  in  making  it  a  posi- 
tive duty  on  the  part  of  the  personnel  engaged  in  tending 
the  sick  and  wounded  to  remain  with  them.  Article  III  of 
the  old  convention  was  merely  permissive. 

Personnel  to  be  sent  back  when  no  longer  indispensable. 
— Paragraph  2  treats  of  one  of  the  most  delicate  questions 
in  the  entire  convention.  On  the  one  hand  the  retiring  bel- 
ligerent is  apt  to  be  tempted  not  to  leave  a  portion  of  his 
sanitary  personnel  with  the  sick  and  wounded  if  he  is  going 
to  be  deprived  of  their  services  for  a  considerable  time.  On 
the  other  hand  the  belligerent  into  whose  hands  the  person- 
nel may  fall  is  apt  to  be  under  the  temptation  to  retain  it 
in  order  to  avoid  all  danger  of  spying,  and  even  in  order  to 
weaken  his  enemy  by  keeping  from  him  his  sanitary  staff. 
The  old  convention  provided  that  the  staff  might  withdraw 
and  that  they  should  be  delivered  to  the  outposts  of  the 
enemy.  This  was  clearly  incompatible  with  military  neces- 
sity and  was  modified  by  Additional  Article  I.  The  present 
article  seems  to  present  the  wisest  possible  solution  of  the 
vexed  question.  In  the  first  place  it  makes  it  an  absolute 
duty  to  send  the  staff  back  and  allows  their  retention  not 
during  the  entire  period  when  they  can  be  of  service  to 
their  sick  and  wounded,  but  only  so  long  as  their  services 
are  indispensable.  This  will  generally  confine  their  labors, 
it  would  seem,  to  the  first  line  of  sanitary  formations,  and 
enable  them  to  be  sent  back  as  soon  as  the  emergency  work 
following  a  battle  is  over.17  In  the  second  place  the  com- 
manding general  "is  permitted  to  exercise  a  reasonable 
discretion  in  respect  to  the  time  when  and  the  method  and 
route  by  which  the  restoration  shall  be  accomplished."18 
This,  no  doubt,  leaves  a  great  responsibility  in  the  hands  of 
the  commanding  general.  It  is  in  his  power  to  render  this 
nrost  important  provision  of  the  convention  so  much  blank 
paper  on  the  plea  of  military  necessity,  but  the  high  charac- 
ter of  the  modern  military  service  renders  this  possibility 
little  to  be  feared. 

G-  XIII.    While  they  remain  in  his  power,  the  enemy  will  se- 

17  Gillot,  p.  228. 

ig  Report  of  the  United  States  Delegation,  p.  14. 


260  THE  SICK,  WOUNDED  AND  SHIPWRECKED. 

cure  to  the  personnel  mentioned  in  article  IX  the  same  pay  and 
allowances  to  which  persons  of  the  same  grade  in  his  own  army 
are  entitled. 

To  receive  pay  in  force  in  captor's  army. — Experience  has 
proved  that  pay  in  the  army  of  the  captor  is  a  better  cri- 
terion for  the  pay  of  the  prisoner  than  the  pay  to  which  he 
has  been  accustomed.  The  conventions  are  now  uniform 
on  this  point. 

MATERIEL. 

G  XIV.  Mobile  sanitary  formations  that  have  fallen  into  the 
power  of  the  enemy  shall  retain  their  materiel  and  means  of 
transportation  of  whatever  hind,  including  teams  and  the  per- 
sonnel charged  with  their  management. 

Competent  military  authority,  however,  shall  have  the  right 
to  employ  them  in  caring  for  the  sick  and  wounded.  The 
restoration  of  the  materiel  shall  take  place  in  accordance  with 
the  conditions  prescribed  for  the  sanitary  personnel,  and,  as  far 
as  possible,  at  the  same  time. 

Composition  of  movable  sanitary  formation. — "To  each 
of  the  movable  sanitary  formations  a  surgical  and  adminis- 
trative personnel  is  attached ;  tents,  bedding,  ambulances 
and  other  means  of  transportation  are  provided,  together 
with  a  sufficient  equipment  of  surgical  instruments,  and 
medical  and  hospital  supplies.  To  the  personnel  and  ma- 
terial constituting  such  a  movable  sanitary  formation  the 
quality  of  inviolability  is  attached  by  the  terms  of  the 
convention,  and  in  the  event  of  its  falling  into  the  hands  of 
the  enemy,  the  entire  establishment,  when  its  sick  and 
wounded  have  been  evacuated  or  transferred  to  fixed  or 
base  hospitals,  is  required  to  be  returned  to  the  lines  of 
its  own  army  with  the  least  possible  delay."10 

Just  as  the  personnel  is  under  the  direction  of  the  enemy 
into  whose  power  it  falls,  so  the  material  is  subject  to  com- 
petent military  authority  to  employ  it  in  the  care  of  the 
sick  and  wounded  as  long  as  it  is  indispensable. 

G  XV.  Buildings  and  materiel  pertaining  to  fixed  establish- 
ments shall  remain  subject  to  the  laws  of  war,  but  cannot  be 
diverted  from  their  use  so  long  as  they  are  necessary  for  the 
sich  and  wounded.     Commanders  of  troops  engaged  in  opera- 

19  Report  of  United  States  Delegation,  p.  14. 


MATERIAL.  261 

tions,  however,  may  use  them,  in  case  of  important  military 
necessity,  if,  before  such  use,  the  sick  and  wounded  found  in 
them  have  been  provided  for. 

Fixed  establishments. — That  public  fixed  hospitals  and 
the  material  therein  shall  not  be  turned  from  their  chari- 
table purpose  so  long  as  they  are  necessary  for  the  sick  and 
wounded,  is  an  important  modification  of  the  long  standing 
rule  that  they  remain  subject  to  the  laws  of  war,  that  is,  to 
the  right  of  the  occupant  to  the  enjoyment  of  the  usufruct 
of  the  buildings  and  to  the  capture  of  the  material.  It  is 
to  be  noticed  that  the  first  provision  of  this  article  is  not 
confined,  as  the  second  is,  to  the  sick  and  wounded  con- 
tained in  the  hospital  itself.  As  long  as  the  buildings  or 
their  material  are  necessary  for  any  sick  and  wounded 
they  cannot  be  diverted  from  their  purpose,  except  insofar 
as  this  is  modified  by  the  second  provision  of  the  article. 
The  respect  and  protection  guaranteed  by  the  article,  does 
not  mean,  of  course,  that  hospitals  may  not  be  the  scene 
of  military  operations.  If  a  hospital  occupies  a  strategic 
point,  consideration  for  its  occupants  may  have  to  give  way 
to  military  necessity,  however  much  it  is  to  be  regretted. 

G  XVI.  The  materiel  of  aid  societies,  admitted  to  the  bene- 
fits of  this  convention  in  conformity  to  the  conditions  herein 
prescribed,  is  regarded  as  private  property  and,  as  such,  will  be 
respected  under  all  circumstances,  save  that  it  is  subject  to  the 
right  of  requisition  by  belligerents  in  conformity  to  the  laivs  and 
usages  of  war. 

Materiel  of  aid  societies. — The  material  of  aid  societies 
found  in  fixed  hospitals,  like  that  belonging  to  the  state, 
it  is  to  be  presumed,  cannot  be  diverted  from  its  use  so  long 
as  it  is  necessary  for  the  sick  and  wounded.  The  only 
question  at  the  Conference  seems  to  have  been  as  to  whether 
it  was  entitled  to  better  treatment  than  similar  public 
property  and  the  Conference  resolved  this  doubt  by  assimi- 
lating it  to  private  property,  which,  at  least  on  land,  is  not 
subject  to  capture,  but  merely  to  requisition.  It  was  de- 
sired to  do  away  with  the  right  of  requisition,  or  at  least, 
to  restrict  its  application,  when  taken  by  the  way  of  requi- 
sition, to  the  use  of  the  sick  and  wounded;  "but  there  were 
decided  differences  of  view  in  this  regard  among  the  dele- 
gates, and  the  clause  as  adopted  represents  a  compromise 


262  THE  SICK,  WOUNDED  AND  SHIPWRECKED. 

of  widely  divergent  opinions."20     It  clearly  should  not  be 
requisitioned,  however,  unless  the  necessity  is  pressing. 

CONVOYS  OF  EVACUATION. 

G  XVII.  Convoys  of  evacuation  shall  be  treated  as  movable 
sanitary  formations  with  the  following  exceptions: 

1.  A  belligerent  intercepting  a  convoy  may,  if  required  by 
military  necessity,  vacate  such  convoy  by  charging  himself  with 
the  care  of  the  sick  and  wounded  whom  it  contains. 

2.  In  this  case  the  obligation  to  restore  the  sanitary  person- 
nel, as  provided  for  in  article  XII,  shall  be  extended  to  include 
the  entire  military  personnel  employed,  under  proper  authority, 
in  the  transportation  and  protection  of  the  convoy. 

The  obligation  to  return  the  sanitary  materiel  as  provided 
for  in  article  XIV  shall  apply  to  railway  trains  and  vessels  in- 
tended for  interior  navigation  ivhich  have  been  especially  equip- 
ped for  evacuation  purposes,  together  with  the  equipment  of 
such  vehicles,  trains  and  vessels  ivhich  belong  to  the  sanitary 
service. 

Military  vehicles,  with  their  teams,  other  than  those  belong- 
ing to  the  sanitary  service,  may  be  captured. 

Civilians  and  means  of  transportation  obtained  by  requisition, 
including  railway  materiel  and  vessels  utilized  for  convoys,  are 
subject  to  the  general  rules  of  international  law. 

Convoys. — The  translation  of  the  French  "dispositions"  in 
the  first  sentence  of  this  article  into  "exceptions"  is  un- 
fortunate. If  it  had  been  translated  to  read:  "Convoys 
of  evacuation  shall  be  treated  as  movable  sanitary  forma- 
tions subject  to  the  following  provisions,"  it  would  seem 
that  the  sense  of  the  original  would  have  been  more  accur- 
ately preserved  as  subparagraphs  1  and  2  amplify  the  first 
sentence  rather  than  form  exceptions  to  it. 

Subparagraph  1  corresponds  to  the  second  provision  of 
G  XV.  Not  only  may  the  course  of  the  convoy  be  changed 
in  order  to  retain  the  sick  and  wounded  therein  as  prisoners 
of  Avar  or  for  some  other  reason,  but  the  convoy  may  be 
broken  up  entirely  in  case  of  military  necessity,  provided 
those  contained  therein  are  cared  for. 

In  subparagraph  2  the  distinction  between  the  military 
personnel    temporarily    employed   in    aiding   the    sick    and 

20  Report  of  the  United  States  Delegation,  p.  15. 


DISTINCTIVE  EMBLEM.  263 

wounded  and  the  sanitary  personnel  proper  is  more  clearly 
brought  out  than  in  G  XIV,  or  even  than  in  paragraph  2 
of  G  IX,  which  provides  for  the  sending  back  of  the  guard 
of  sanitary  formations.  This  distinction  is  particularly  im- 
portant in  connection  with  G  XX,  which  confines  the  wear- 
ing of  the  arm  badge  to  the  sanitary  personnel  proper. 

Military  vehicles  temporarily  used  fcr  sick  and  wounded. 
— Paragraph  3  provides  that  a  different  rule  shall  be  applied 
to  military  vehicles  temporarily  used  for  the  sick  and 
wounded  from  that  applied  by  subparagraph  2  to  the  mili- 
tary personnel  temporarily  employed  in  aiding  them.  The 
personnel  is  returned  while  the  material  is  not.  This  is 
because  a  provision  for  the  return  of  such  material  would 
have  been  liable  to  grave  abuse.  It  would  have  been  too 
great  a  temptation  to  a  retreating  belligerent  to  save  its 
transportation  by  using  it  for  the  sick  and  wounded. 

DISTINCTIVE   EMBLEM. 

G  XVIII.    In  homage  to  Switzerland  the  heraldic  sign  of  the 
red  cross  on  a  white  ground,  formed  by  the  reversal  of  the  fed-    A^ 
eral  colors,  is  continued  as  the  emblem  and  distinctive  sign  of 
the  sanitary  service  of  armies. 

"Heraldic"  sign  of  the  Red  Cross  in  honor  of  Switzer- 
land.— The  use  of  the  term  'heraldic'  in  describing  the  in- 
signia of  the  convention  excludes  the  view  that  any  re- 
ligious association  attaches  to  the  distinctive  emblem  of 
the  convention's  philanthropic  and  humanitarium  activity. 
Turkey  was  not  represented  in  the  conference,  and  it  is 
worthy  of  note  that  the  representatives  of  Japan,  China. 
Persia  and  Siam  expressed  a  willingness  on  the  part  of  their 
Governments  to  accept  the  Red  Cross  as  the  official  insignia 
of  the  convention."21  Persia,  however,  took  a  different  atti- 
tude at  the  second  Peace  Conference.22 

G  XIX.  This  emblem  appears  on  flags  and  brassards  as  well 
as  upon  all  materiel  appertaining  to  the  sanitary  service,  with 
the  permission  of  competent  military  authority. 

Sign  for  means  of  transportation.— It  was  urged  by  Col- 
onel MacPherson,  of  the  British  delegation,  that  the  means  of 
transportation    intended    exclusively    for    sanitary    service 

21  Report  of  the  United  States  Delegation.,  p.  18. 

22  See  infra,  p.  270. 


26  1  THE  SICK,  WOUNDED  AND  SHIPWRECKED. 

should  be  painted  white  on  each  side  with  a  red  cross  as 
large  as  the  dimensions  of  the  vehicle  would  allow,  in  par- 
tial analogy  to  hospital  ships,  but  it  was  felt  best  to  leave 
questions  of  detail  to  the  respective  governments,  and  also 
that  such  a  regulation  might  interfere  with  military  opera- 
tions by  attracting  the  attention  of  the  enemy.23 

G  XX.  The  personnel  'protected  by  the  provisions  of  para- 
graph 1,  article  IX,  and  articles  X  and  XI  will  wear  attached 
to  the  left  arm  a  red  cross  on  a  white  ground,  which  will  be 
issued  and  stamped  by  competent  military  authority,  and  ac- 
companied by  a  certificate  of  identity  in  the  case  of  persons  at- 
tached to  the  sanitary  service  of  armies  who  do  not  have  military 
uniform. 

Personnel  entitled  to  arm  badges. — As  already  pointed  out 
the  arm  badges  are  for  the  sanitary  personnel  proper,  not 
for  those  temporarily  in  the  service  of  the  sick  and  wounded, 
such  as  the  pickets  guarding  sanitary  formations,  litter- 
bearers  and  the  military  personnel  engaged  generally  in  the 
transportation  of  the  sick  and  wounded,  so  that  it  is  clear 
that  the  arm  badge  is  not  always  a  prerequisite  to  the  pro- 
tection of  the  convention.24 

Certificates  of  identity. — The  provision  that  those  not  in 
military  uniform  shall  be  provided  with  a  certificate  of 
identity  is  an  application  of  the  general  principle  of  H  XIII 
that  individuals  accompanying  an  army,  but  not  forming  an 
integral  part  of  it,  such  as  war  correspondents,  sutlers  and 
contractors,  are  entitled  to  be  treated  as  prisoners  of  war 
on  condition  that  they  are  provided  with  proper  certificates 
of  authority. 

It  is  to  be  noticed  that  the  arm  badge  is  to  be  attached  to, 
not  merely  slipped  over  the  left  arm.  It  is  essential  that 
the  character  of  medical  personnel  shall  not  be  put  on  and 
off  at  pleasure. 

G  XXI.  The  distinctive  flag  of  the  convention  can  only  be 
displayed,  with  the  consent  of  the  military  authorities,  over 
sanitary  formations  and  establishments  whose  protection  it  se- 
cures. It  shall  be  accompanied  by  the  national  flag  of  the  bel- 
ligerent to  whose  service  the  formation  or  establishment  is  at- 
tached. 
.       Sanitary  formations  which  have  fallen  into  the  power  of  the 

asDelpech,  13  R.  G.  D.  I.  P..  715. 
24  Gillot,  p   276. 


DISTINCTIVE  EMBLEM.  265 

enemy,  however,  shall  fly  no  other  flag  than  that  of  the  Red 
Cross  so  long  as  they  continue  in  that  situation. 

Importance  of  national  flag  for  movable  formations.— 
Even  if  no  national  flag  were  required  over  fixed  establish- 
ments, there  would  generally  be  little  difficulty  in  deter- 
mining its  nationality,  but  the  same  thing  cannot  be  said 
of  movable  formations.  They  are  located  near  the  ever 
varying  line  between  the  two  armies,  and  it  is  important 
to  know  whether  their  occupants  are  enemies  to  be  captured 
on  the  one  hand,  or  on  the  other  to  be  held  responsible  for 
acts  violative  of  the  laws  of  war. 

Those  in  the  power  of  the  enemy  to  fly  only  the  Red 
Cross  flag. — It  would  perhaps  have  been  desirable  in  the 
interest  of  the  captured  ambulance  for  it  to  have  retained 
the  double  flag  after  falling  into  the  power  of  the  enemy, 
as  the  anomaly  of  a  hostile  flag  in  camp  would  have  been 
a  constant  reminder  that  its  retention  was  to  be  tempo- 
rary,25 but  the  fact  that  it  would  have  been  such  an  anomaly 
was  fatal  to  it,  and  the  rule  that  the  Red  Cross  flag  shall 
be  flown,  is  in  line  with  the  general  thought  of  the  conven- 
tion that  prisoners  who  are  sick  and  wounded  are,  never- 
theless, prisoners,  and  that  the  ambulance  including  the 
personnel  is  subject  to  the  direction  of  the  enemy  while  in 
his  power. 

G  XXII.  Neutral  sanitary  formations,  which,  under  the  con- 
ditions set  forth  in  article  XI,  have  been  authorized  to  render 
their  services  shall  fly,  with  the  Hag  of  the  convention,  the 
national  flag  of  the  belligerent  to  which  they  are  attached.  The 
provisions  of  the  second  paragraph  of  the  preceding  article  are 
applicable  to  them. 

Flags  for  neutral  formations. — This  article  does  not  ex- 
pressly provide  that  the  neutral  sanitary  formation  shall 
not  fly  its  own  national  flag,  and  from  the  fact  that  neutral 
hospital  ships  may,  it  may  be  contended  that  there  is  noth- 
ing to  prevent  the  neutral  sanitary  formation  from  doing 
so  also.  But  in  the  case  of  the  neutral  hospital  ship  there 
is  express  permission  to  fly  its  national  flag,  while  in  this 
article  the  intent  seems  to  be  that  the  use  of  the  flag  of 
the  convention  and  of  the  belligerent  to  which  the  forma- 
tion shall  be  attached  shall  be  exclusive.     The  anomaly  of 

25Delpech,  13  R.  G.  D.  I.  P.,  719. 


266  THE  SICK,  WOUNDED  AND  SHIPWRECKED. 

the  flag  of  a  neutral  power  in  an  enemy  camp  is  not  to  be 
encouraged. 

G  XXIII.  The  emblem  of  the  red  cross  on  a  white  ground 
and  the  words  RED  CROSS  or  GENEVA  CROSS  can  only  be 
used,  whether  in  time  of  peace  or  war,  to  protect  or  designate 
sanitary  formations  and  establishments,  the  personnel  and  ma- 
teriel protected  by  the  convention. 

APPLICATION    AND   EXECUTION    OF   THE    CONVENTION. 

G  XXIV.  The  provisions  of  the  present  convention  are 
obligatory  on  the  contracting  powers  only,  in  case  of  war  between 
two  or  more  of  them.  The  said  provisions  shall  cease  to  be 
obligatory  from  the  time  when  one  of  the  belligerent  powers 
shall  not  be  signatory  to  the  convention. 

G  XXV.  The  commanders-in-chief  of  the  belligerent  armies 
shall  have  to  provide  for  the  details  of  execution  of  the  fore- 
going article,  as  well  as  for  unforseen  cases,  in  accordance  with 
the  instructions  of  their  respective  governments,  and  conform- 
ably to  the  general  principles  of  this  convention. 

G  XXVI.  The  signatory  governments  shall  take  the  neces- 
sary steps  to  acquaint  their  troops,  and  particularly  the  pro- 
tected personnel,  with  the  provisions  of  this  convention  and  to 
make  them  known  to  the  people  at  large. 

REPRESSION    OF    ABUSES    AND    INFRACTIONS. 

G  XXVII.  The  signatory  powers  whose  legislation  should  not 
now  be  adequate  engage  to  take  or  recommend  to  their  legis- 
latures such  measures  as  may  be  necessary  to  prevent  the  use, 
by  private  persons  or  by  societies  other  than  those  upon  which 
this  convention  confers  the  right  thereto,  of  the  emblem  or  name 
of  the  Red  Cross  or  Geneva  Cross,  particularly  for  commercial 
purposes  by  means  of  trade-marks. 

The  prohibition  of  the  use  of  the  emblem  or  name  as  above 
shall  be  enforced  at  and  from  the  time  set  by  each  legislation 
and  not  later  than  five  years  after  the  convention  goes  into 
effect.  Upon  the  said  going  into  effect,  it  shall  be  unlawful  to 
use  a  trade-mark  or  commercial  label  contrary  to  such  prohibi- 
tion. 

American  act  protecting  the  Red  Cross.— By  section  4  of 
the  Act  incorporating  the  American  National  Red  Cross, 


NAVAL    WAR.  267 

33  Statutes  at  Large,  600,  it  is  provided  among  other  things 
that  it  shall  not  be  lawful  "for  any  person  or  corporation, 
other  than  the  Red  Cross  of  America,  not  now  lawfully  en- 
titled to  use  the  sign  of  the  Red  Cross,  hereafter  to  use  such 
sign  or  any  insignia  colored  in  imitation  thereof  for  the 
purpose  of  trade  or  as  an  advertisement  to  induce  the  sale 
of  any  article  whatever"  under  penalty  of  not  less  than 
$100  and  not  more  than  $500,  or  not  more  than  a  year's 
imprisonment,  or  both,  for  each  offense.  Under  this  law  the 
Commissioner  of  Patents  has  refused  to  register  the  Red 
Cross  as  a  trademark. 

G  XXVIII.  In  the  event  of  their  military  penal  laws  being 
insufficient,  the  signatory  governments  also  engage  to  take,  or 
to  recommend  to  their  legislatures,  the  necessary  measures  to 
repress,  in  time  of  war,  individual  acts  of  pillage  and  ill  treat- 
ment of  the  sick  and  wounded  of  the  armies,  as  well  as  to  pun- 
ish, as  usurpations  of  military  insignia,  the  wrongful  use  of  the 
flag  and  brassard  of  the  Bed  Cross  by  military  persons  or  private 
individuals  not  protected  by  the  present  convention. 

They  will  communicate  to  each  other  through  the  Swiss  Fed- 
eral Council  the  measures  taken  with  a  view  to  such  repression, 
not  later  than  five  years  from  the  ratification  of  the  present  con- 
vention. 

NAVAL  WAR. 

G  N  I.  Military  hospital  ships,  that  is  to  say,  ships  con- 
structed or  assigned  by  States  specially  and  solely  ivith  a  view  \ 
to  assisting  the  wounded,  sich  and  shipwrecked,  the  names  of 
which  have  been  communicated  to  the  belligerent  Powers  at  the 
commencement  or  during  the  course  of  hostilities,  and  in  any 
case  before  they  are  employed,  shall  be  respected,  and  cannot 
be  captured  while  hostilities  last. 

These  ships,  moreover,  are  not  on  the  same  footing  as  war- 
ships as  regards  their  stay  in  a  neutral  port. 

Military  hospital  ships.  Communication  of  names. — The 
communication  of  the  names  of  hospital  ships  to  the  other 
belligerent  at  the  beginning  of  the  war,  or,  if  that  is  not 
possible,  before  the  ship  is  placed  in  service,  is  especially 
desirable  in  order  to  prevent  ships  from  claiming  exemp- 
tion from  capture,  which  may  have  been  turned  into  hospital 
ships  at  the  last  moment  only  with  a  view  to  secure  such 
immunity.    The  names  of  the  hospital  ships  may  also  well 


268  THE  SICK,  WOUNDED  AND  SHIPWRECKED. 

be  sent  to  neutral  as  well  as  to  belligerent  powers,  in  view 
of  the  exemption  secured  to  them  by  this  article  from  the 
rules  applicable  to  warships  in  neutral  ports. 

G  N  II.  Hospital  ships,  equipped  wholly  or  in  part  at  the 
expense  of  private  individuals  or  officially  recognized  relief  so- 
cieties, shall  be  likewise  respected  and  exempt  from  capture,  if 
the  belligerent  power  to  whom  they  belong  has  given  them  an 
official  commission  and  has  notified  their  names  to  the  hostile 
Power  at  the  commencement  of  or  during  hostilities,  and  in 
any  case  before  they  are  employed. 

These  ships  must  be  provided  with  a  certificate  from  the  com- 
petent authorities  declaring  that  the  vessels  have  been  under 
their  control  while  fitting  out  and  on  final  departure. 

Private  hospital  ships. — The  privileges  of  this  article  were 
extended  to  ships  equipped  by  individuals  as  wTell  as  to 
those  equipped  by  officially  recognized  societies,  in  order  to 
encourage  the  placing  of  craft,  such  as  private  yachts,  in 
the  medical  service. 

G  N  III.  Hospital  ships,  equipped  wholly  or  in  part  at  the 
expense  of  private  individuals  or  officially  recognized  societies 
of  neutral  countries,  shall  be  respected  and  exempt  from  cap- 
ture, on  condition  that  they  are  placed  wider  the  control  of  one 
of  the  belligerents,  with  the  previous  consent  of  their  own  Gov- 
ernment and  with  the  authorization  of  the  belligerent  himself, 
and  that  the  latter  has  notified  their  name  to  his  adversary  at 
the  commencement  of  or  during  hostilities,  and  in  any  case, 
before  they  are  employed. 

Neutral  hospital  ships  under  the  control  of  one  of  the 
belligerents. — G  N  III  marks  a  distinct  advance  over  Ar- 
ticle III  of  the  Naval  Convention,  drawn  up  at  the  first 
Peace  Conference.  That  article  made  no  provision  for  plac- 
ing the  neutral  hospital  ship  under  the  control  of  one  of 
the  belligerents,  and  accordingly  the  use  that  would  have 
been  made  of  them  was  problematical,  as  their  apparent  in- 
dependence would,  unavoidably,  have  given  rise  to  much 
friction,  and  they  would  constantly  have  given  rise  to  sus- 
picions of  unneutral  service. 

G  N  IV.  The  ships  mentioned  in  Articles  I,  II  and  III  shall 
afford  relief  and  assistance  to  the  wounded,  sick  and  shipwrecked 
of  the  belligerents  without  distinction  of  nationality. 

The  Governments  undertake  not  to  use  these  ships  for  any 
military  purpose. 


NAVAL    WAR.  269 

These  vessels  must  in  no  wise  hamper  the  movement  of  the 
combatants. 

During  and  after  an  engagement  they  will  act  at  their  own 
risk  and  peril. 

The  belligerents  shall  have  the  right  to  control  and  search 
them;  they  can  refuse  to  help  them,  order  them  off,  make  them 
take  a  certain  course,  and  put  a  Commissioner  on  board;  they 
can  even  detain  them,  if  important  circumstances  require  it. 

As  far  as  possible  the  belligerents  shall  enter  in  the  log  of 
hospital  ships  the  orders  which  they  give  them. 

Hospital  ships  subject  to  control  analogous  to  that  over 
movable  sanitary  formations. — These  provisions  were  not 
so  necessary  in  this  convention  as  in  the  old,  because  of  the 
change  in  the  preceding  article  placing  neutral  hospital 
ships  under  the  control  of  one  of  the  belligerents,  but  they 
are  wise  as  emphasizing  the  conduct  the  hospital  ship  is 
expected  to  follow,  and  in  placing  beyond  cavil  the  fact 
that  while  the  hospital  ships  of  the  enemy  are  not  subject 
to  capture,  nevertheless  they  are  subject  to  a  control  analog- 
ous to  that  of  ambulances  and  convoys. 

Not  to  be  used  for  military  purposes. — The  provision  that 
they  shall  not  be  used  for  any  military  purpose  is  exempli- 
fied in  the  instructions  issued  to  the  United  States  hospital 
ship  Relief  during  the  Spanish- American  War:  "No  guns, 
ammunition  or  articles  contraband  of  war,  except  coal  or 
stores  necessary  for  the  movement  of  the  vessel  shall  be 
placed  on  board  nor  shall  the  vessel  be  used  as  a  transport 
for  the  carrying  of  dispatches,  officers  or  men  not  sick  or 
disabled,  other  than  those  belonging  to  the  medical  depart- 
ment."26 As  to  arms  for  maintaining  or  for  defending  the 
sick,  see  G  N  VIII. 

G  N  V.  Military  hospital  ships  shall  be  distinguished  by 
being  painted  white  outside  with  a  horizontal  band  of  green 
about  a  metre  and  a  half  in  breadth. 

The  ships  mentioned  in  Articles  II  and  III  shall  be  distin- 
guished by  being  painted  white  outside  with  a  horizontal  band 
of  red  about  a  metre  and  a  half  in  breadth. 

The  boats  of  the  ships  above  mentioned,  as  also  small  craft 
which  may  be  used  for  hospital  ivork,  shall  be  distinguished 
by  similar  painting. 

All  hospital  ships  shall  make  themselves  known  by  hoisting, 

26  Davis,  International  Law,  p.  535. 


270  THE  SICK,  WOUNDED  AND  SHIPWRECKED. 

with  their  national  flag,  the  white  flag  with  a  red  cross  provided 
by  the  Geneva  Convention,  and  further,  if  they  belong  to  a 
neutral  Stale,  by  flying  at  the  mainmast  the  national  flag  of 
the  belligerent  under  whose  control  they  are  placed. 

Hospital  ships  which,  in  the  terms  of  Article  IV,  are  detained 
by  the  enemy,  must  haul  down  the  national  flag  of  the  belliger- 
ent to  whom  they  belong. 

The  ships  and  boats  above  mentioned  which  wish  to  ensure 
by  night  the  freedom  from  interference  to  which  they  are  en- 
titled, must,  subject  to  the  assent  of  the  belligerent  they  are 
accompanying,  take  the  necessary  measures  to  render  their 
special  painting  sufficiently  plain. 

Emblem. — That  the  neutral  hospital  ship  shall  fly  the  flag 
of  the  belligerent  to  which  it  is  attached  accords  with  the 
suggestion  of  Captain  Mahan  at  the  first  Peace  Conference. 
It  is  unfortunate  that  the  second  Conference  did  not  go 
still  further  and  refuse  to  sanction  the  use  of  the  national 
flag  of  the  neutral  hospital  ship  at  all.  Its  presence  in  a 
hostile  fleet  is  too  likely  to  engender  hostile  feeling  towards 
the  neutral.  Persia  reserved  the  right  and  this  was  recog- 
nized by  the  Conference  to  use  the  Lion  and  Red  Sun  in- 
stead of  and  in  place  of  the  Red  Cross.27 

G  N  VI.  The  distinguishing  signs  referred  to  in  Article  V 
can  only  be  used,  whether  in  time  of  peace  or  war,  for  protect- 
ing or  indicating  the  ships  therein  mentioned. 

Exclusive  use. — This  article  is  supplemented  by  G  N  XXI, 
providing  that  suitable  legislation  shall  be  enacted,  or  at 
least  proposed,  punishing  the  unjustifiable  use  of  these 
marks. 

G  N  VII.     In  the  case  of  a  fight  on  board  a  warship,  the 
sick  wards  shall  be  respected  and  spared  as  far  as  possible. 
vJ  The  said  sick  wards  and  the  materiel  belonging  to  them  re- 

main subject  to  the  laws  of  war;  they  cannot,  however,  be  used 
for  any  purpose  other  than  that  for  which  they  were  originally 
intended,  so  long  as  they  are  required  for  the  sick  and  wounded. 
The  commander,  however,  into  whose  power  they  have  fallen 
may  apply  them  to  other  purposes,  if  the  military  situation  re- 
quires it,  after  seeing  that  the  sick  and  wounded  on  board  are 
properly  provided  for. 

Sick  wards. — The  treatment  of  hospital  ships  is  similar 
to  that  of  movable  sanitary  formations  on  land.    The  treat- 

27  The  Second  International  Peace  Conference,  p.  215. 


NAVAL    WAR.  271 

ment  of  sick  wards,  it  will  be  seen,  is  similar  to  that  of 
fixed  sanitary  formations,  this  article  being  in  the  main  a 
reproduction  of  G  XV,  the  remarks  on  which  article  apply 
to  this  also. 

G  N  VIII.  Hospital  ships  and  sick  wards  of  vessels  are  no 
longer  entitled  to  protection  if  they  are  employed  for  the  pur- 
pose of  injuring  the  enemy. 

The  fact  of  the  staff  of  the  said  ships  and  sick  wards  being 
armed  for  maintaining  order  and  for  defending  the  sick  and 
wounded,  and  the  presence  of  wireless  telegraphy  apparatus  on 
board,  is  not  a  sufficient  reason  for  withdrawing  protection. 

Sick  and  wounded  may  be  defended. — This  article  corres- 
ponds to  G  VII  and  VIII.  The  presence  of  wireless  teleg- 
raphy apparatus  per  se  is  not  objectionable,  but  it  must  not 
be  employed  for  the  purpose  of  injuring  the  enemy. 

G  X  IX.  Belligerents  may  appeal  to  the  charity  of  the  com- 
manders of  neutral  merchant  ships,  yachts,  or  boats  to  take  on 
board  and  tend  the  sick  and  wounded. 

Vessels  responding  to  this  appeal,  and  also  vessels  which  have 
of  their  own  accord  rescued  sick,  wounded  or  shipwrecked  men, 
shall  enjoy  special  protection  and  certain  immunities.  In  no 
case  can  they  be  captured  for  having  such  persons  on  board,  but, 
apart  from,  special  undertakings  that  have  been  made  to  them, 
they  remain  liable  to  capture  for  any  violations  of  neutrality 
they  may  have  committed. 

Appeal  to  charity  of  merchant  ships,  etc. — G  N  IX  cor- 
responds to  G  V.  Special  immunity  for  violations  of  neu- 
trality may  be  granted,  but  no  general  immunity  results 
from  the  mere  rescue  of  the  sick,  wounded  or  shipwrecked. 
This  article  is  supplemented  by  G  N  XII. 

G  X  X.  The  religious,  medical  and  hospital  staff  of  any 
captured  ship  is  inviolable,  and  its  members  cannot  be  made 
prisoners  of  war.  On  leaving  the  ship  they  take  away  with  them 
the  objects  and  surgical  instruments  which  are  their  own  pri- 
vate property. 

This  staff  shall  continue  to  discharge  its  duties  while  neces- 
sary, and  can  afterwards  leave,  when  the  Commander-in-Chief 
considers  it  possible. 

The  belligerents  must  guarantee  to  the  said  staff,  when  it 
has  fallen  into  their  hands,  the  same  allowances  and  pay  which 
are  given  to  the  staff  of  corresponding  rank  in  their  own  navy. 


272  THE  SICK,  WOUNDED  AND  SHIPWRECKED. 

Personnel  not  prisoners  of  war. — This  ground  is  covered 
for  war  on  land  by  G  IX,  XII  and  XIII. 

G  N  XI.  Sailors  and  soldiers  on  board,  when  sick  or  wound- 
ed, as  well  as  other  persons  officially  attached  to  fleets  or  armies, 
whatever  their  nationality,  shall  be  respected  and  tended  by 
the   captors. 

Compare  with  this,  G  I. 

G  N  XII.  Any  warship  belonging  to  a  belligerent  may  de- 
mand that  sick,  wounded  or  shipwrecked  men  on  board  military 
hospital  ships,  hospital  ships  belong  to  relief  societies  or  to  pri- 
vate individuals,  merchant  ships,  yachts  or  boats,  whatever  the 
nationality  of  these  vessels,  should  be  handed  over. 

Eight  to  demand  sick  and  wounded  rescued  by  merchant- 
men.— The  situation  met  by  this  article  was  not  provided 
for  in  the  old  convention.  Captain  Mahan  had  noticed  this. 
In  his  report  he  said:  "The  omission  was  one  likely  to 
occur  to  an  American  old  enough  to  remember  the  very 
concrete  and  pertinent  instance  of  the  British  yacht  "Deer- 
hound"  saving  the  men  of  the  Alabama,  including  her  cap- 
tain, who  were  then  held  to  be  under  the  protection  of  the 
neutral  flag."28  His  attention  had  been  attracted  to  this 
omission  too  late  to  effect  the  final  result,  however,  and  this 
was  possibly  the  cause  of  the  ultimate  exclusion  of  Article 
X  of  the  old  Convention,  now  G  N  XV.  G  N  XII,  which 
covers  much  the  same  ground  as  the  second  of  the  articles 
proposed  by  Captain  Mahan  at  the  first  conference,  was 
proposed  by  the  German  delegation  and  supported  by  the 
reporter,  M.  Renault,  who  argued  that  in  absence  of  an  in- 
ternational convention,  not  only  could  a  belligerent  do  all 
that  is  allowed  by  this  article,  but  that  except  for  inter- 
national convention,  the  neutral  ships  would  be  liable  to 
confiscation  on  the  ground  of  unneutral  service.  It  is  to 
be  noticed  that  the  article  does  not  mention  neutral  war- 
ships. 

Position  taken  at  first  by  British  Government. — The  Brit- 
ish Government  at  first  refused  to  acquiesce  in  the  position 
that  the  belligerent  warship  would  have  the  right  to  demand 
the  surrender  of  the  rescued  on  board  a  neutral  merchant 
ship,  but  later  withdrew  this  reservation.  The  position  was 
one  somewhat  similar  to  that  taken  by  the  British  Govern- 
ment in  the  Trent  Affair,  although  the  cases  are  clearly  dis- 

28  Holls,  p.  500. 


NAVAL    WAR.  273 

tinguishable,  as  in  the  latter  case,  Mason  and  Slidell,  though 
military  agents  also,  were  in  a  somewhat  quasi  diplomatic 
position.  That  the  original  British  position  was  not  correct 
is  admitted  by  Westlake29  and  few  will  disagree  with  him. 
The  analogy  between  the  deck  of  a  merchant  ship  on  the 
high  seas  and  the  soil  of  its  country  has  never  been  carried 
so  far  as  to  protect  those  in  the  military  service  of  an  enemy 
from  capture  when  on  board  such  a  ship. 

Liability  of  neutral  to  capture  for  rescue  work  indepen- 
dent of  convention. — On  the  second  point  the  liability  of 
the  neutral  to  capture,  except  for  international  convention, 
Westlake  disagrees  with  the  position  taken  by  Renault. 
He  says:  "There  would  be  no  ground  for  presuming  that 
he  intended  to  restore  them  to  the  military  service  of  their 
own  side.  If  he  had  the  correct  intention  to  see  to  their 
safe  internment,  it  is  not  clear  what  benefit  the  enemy  would 
derive  from  internment  being  substituted  for  capture,  and 
there  would  be  no  room  for  suggesting  the  existence  of  an 
improper  arrangement  between  him  and  the  enemy."30 
Such  a  presumption  would  be  a  reasonable  one,  but  it  is 
doubtful  whether  a  Court  inclined  to  the  condemnation  of 
prizes  would  sanction  it.  The  old  statements  of  the  liability 
of  neutral  ships  to  confiscation  for  carrying  those  in  the 
enemy's  service  are  so  sweeping  that  it  seems  likely  that 
any  but  liberally  inclined  courts  would  place  on  the  neutral 
a  burden  of  overcoming  the  suspicion  raised  by  the  trans- 
portation of  hostile  troops. 

G  N  XIII.  If  sick,  wounded  or  shipwrecked  persons  are 
taken  on  board  a  neutral  warship,  every  possible  precaution 
must  be  taken  that  they  do  not  again  take  part  in  the  opera- 
tions of  the  war. 

Can  such  a  demand  be  made  of  warships? — To  Westlake 
it  apparently  seems  clear  that  no  such  demand  can  be  made 
of  neutral  warships  rescuing  the  sick,  wounded  and  ship- 
wrecked, as  is  allowed  in  the  preceding  article  of  merchant 
ships.  The  analogy  in  this  respect  between  the  deck  of  the 
warship  and  the  soil  of  its  country  seems  to  him  complete. 
There  is  much  to  be  said  for  this.  Warships  lying  in  terri- 
torial waters  enjoy  a  very  wide  immunity  from  the  control 
of  the  territorial  authorities,  and  notwithstanding  the  fact 

29  II  International  Law,  278. 
so  Ibid. 

18 


274  THE  SICK,  WOUNDED  AND  SHIPWRECKED. 

that  the  sovereignty  of  the  territorial  authorities  is  of  a 
higher  degree  than  the  authority  exercised  by  the  success- 
ful belligerent  over  the  scene  of  the  engagement  on  the 
high  seas.  Then,  too,  as  has  just  been  seen,  it  has  been 
seriously  questioned  whether  there  is  any  such  right  even 
over  neutral  merchant  ships. 

To  be  avoided. — That  the  neutral  warship  is  not  to  be 
treated  precisely  as  neutral  soil,  however,  is  evident  from  a 
comparison  of  this  article  with  G  N  XV.  That  article  reads 
that  the  rescued  "must  *  *  *  be  guarded  by  the  neu- 
tral State  so  as  to  prevent  them  again  taking  part  in  the 
war."  This  article  on  the  other  hand  merely  provides  that 
"every  possible  precaution  must  be  taken  that  they  do  not 
again  take  part  in  the  operation  of  the  war."  The  differ- 
ence in  phraseology  may  be  due  to  the  greater  difficulty  of 
guarding  men  on  shipboard  or  to  the  possible  necessity  of 
landing  the  rescued  in  a  belligerent  port  or  of  turning  them 
over  to  a  merchant  ship,  but  it  leaves  open  to  the  unwritten 
law  the  possibility  of  the  successful  belligerent  demanding 
of  the  neutral  warship  those  of  the  enemy  whom  it  has 
rescued  and  has  on  board.  No  greater  precaution  could  be 
taken  that  they  should  not  again  take  part  in  the  operations 
of  the  war  than  by  handing  them  over.  Such  a  demand 
would  be  one  to  be  avoided,  as  it  would  be  likely  to  result 
in  serious  controversy,  but  as  a  matter  of  strict  right  it 
is  a  grave  question  whether  it  might  not  be  made.  The 
successful  belligerent  is  entitled  to  reap  the  reward  of  his 
victory,  and  to  that  end  has  very  wide  authority  over  the 
scene  of  the  engagement,  and  there  seems  no  decisive  rea- 
son why,  if  it  chooses  to  run  the  chance  of  the  exercise  of 
that  authority  by  entering  on  the  theatre  of  operations,  it 
should  not  be  just  as  liable  to  turn  over  those  whom  it 
has  prevented  the  victor  capturing  as  it  would  be  to  turn 
over  a  fugitive  from  the  process  of  the  courts  in  whose 
territory  it  was  lying. 

G  N  XIV.  The  shipwrecked,  wounded  or  sick  of  one  of  the 
belligerents  who  fall  into  the  power  of  the  other  belligerent  are 
prisoners  of  war.  The  captor  must  decide,  according  to  cir- 
cumstances, whether  to  keep  them,  send  them  to  a  port  of  his 
own  country,  to  a  neutral  port,  or  even  to  an  enemy  port.  In 
this  Inst  rase,  prisoners  thus  repatriated  cannot  serve  again 
while  the  war  lasts. 


NAVAL    WAR.  275 

The  shipwrecked,  etc.,  falling  into  the  power  of  the  ene- 
my are  prisoners  of  war. — The  last  paragraph  of  this  article 
might  well  have  been  omitted.  It  was  thought  that  it  would 
be  applied  in  the  main  to  prisoners  incapable  of  further 
service,  whom  the  captor  no  longer  cared  to  retain.  But  as 
to  them  there  would  be  no  need  of  providing  that  they 
should  not  serve  again,  while  the  war  lasts.  As  to  others 
it  is  objectionable  on  the  ground  that  it  amounts  to  com- 
pulsory parole.  There  is  danger  that  a  belligerent,  notwith- 
standing the  fact  that  he  may  be  compelled  to  land  the 
prisoners  at  an  enemy's  port,  may,  nevertheless,  be  able 
to  prevent  their  serving  again  by  means  of  this  provision. 
Probably  the  enemy  could  refuse  to  receive  them  absolutely, 
or  make  a  condition  of  receiving  them  that  the  parole  be 
waived,  but  even  such  a  conditional  refusal  might  seem 
harsh,  and  it  is  unfortunate  that  the  provision  was  not 
omitted  as  was  suggested  by  M.  Rolin  at  the  First  Peace 
Conference.  . 

G  N  XV.  The  shipwrecked,  sick  or  wounded,  who  are  landed  /\ 
at  a  neutral  port  with  the  consent  of  the  local  authorities,  must, 
unless  an  arrangement  is  made  to  the  contrary  between  the 
neutral  State  and  the  belligerent  States,  be  guarded  by  the 
neutral  State  so  as  to  prevent  them  again  tahing  part  in  the 
operations  of  the  war. 

The  -expenses  of  tending  them  in  hospital  and  interning  them 
shall  be  borne  by  the  State  to  which  the  shipwrecked,  sick  or 
wounded  persdns  belong. 

Shipwrecked,  etc.,  landed  at  r,  neutral  port. — This  article 
was  excluded  from  the  old  convention  as  finally  ratified, 
largely  because  it  enabled  the  neutral  state  to  become  a 
prison-keeper  for  the  belligerents,  thus  relieving  one  or  both 
belligerents  of  much  of  the  care  of  the  sick  and  wounded, 
and  allowing  a  more  complete  attention  to  purely  military 
affairs.  It  is  easy  to  see  how  this  might  turn  to  the  decided 
advantage  of  a  belligerent  engaged  at  some  distance  from 
his  home  territory.  By  landing  his  sick  and  wounded  at  a 
nearby  neutral  port,  he  might  overcome  much  of  the  ad- 
vantage which  his  enemy  had  .from  fighting  nearer  home. 
Again  the  chance  of  capturing  the  sick,  wounded  or  ship- 
wrecked is  much  less  where  they  may  be  left  with  a  con- 
venient neutral.  Added  to  this  it  was  feared  that  the  sick, 
wounded  and  shipwrecked  on  board  neutral  vessels  might 


1 


V 


276  THE  SICK,  WOUNDED  AND  SHIPWRECKED. 

be  held  immune  from  capture,  thus  greatly  augmenting  the 
number  that  would  be  landed  at  neutral  ports  and  lessen- 
ing the  possible  number  of  prisoners.  This  last  objection 
has  been  obviated  by  G  N  XII,  and  possibly  on  this  account 
those  powers  which  had  objected  to  the  old  Article  X  ac- 
quiesced in  this  article  at  the  Second  Conference.  Possibly, 
however,  it  was  because  they  felt  that  the  benefit  to  the 
sick,  wounded  and  shipwrecked  would  outweigh  the  pos- 
sible disadvantage  from  a  military  point  of  view. 

G  X  XVI.  After  every  engagement,  the  two  belligerents, 
so  far  as  military  interests  permit,  shall  take  steps  to  look  for 
the  shipwrecked,  sick  and  wounded,  and  to  protect  them  as  well 
as  the  dead,  against  pillage  and  ill  treatment. 

They  shall  see  that  the  burial,  whether  by  land  or  sea,  or 
cremation  of  the  dead  shall  be  preceded  by  a  careful  examina- 
tion  of  the  corpse. 

Compare  G  III. 

G  N  XVII.  Each  belligerent  shall  send,  as  early  as  possible, 
to  the  authorities  of  their  country,  navy  or  army  the  military 
marks  or  documents  of  identity  found  on  the  dead  and  the  de- 
scription of  the  sick  and  wounded  picked  up  by  him. 

The  belligerents  shall  keep  each  other  informed  as  to  intern- 
ments and  transfers  as  well  as  to  the  admissions  into  hospital 
and  deaths  which  have  occurred  among  the  sick  and  wounded 
in  their  hands.  They  shall  collect  all  the  objects  of  personal 
use,  valuables,  letters,  etc.,  which  are  found  in  the  captured 
ships,  or  which  have  been  left  by  the  sick  or  wounded  who  died 
in  hospital,  in  order  to  have  them  forwarded  to  the  persons  con- 
cerned  by  the  authorities  of  their  own  country. 

Compare  G  IV. 

G  X  XVIII.  The  provisions  of  the  present  Convention  do 
not  apply  except  between  Contracting  Powers,  and  then  only 
if  all  the  belligerents  are  parties  to  the  Convention. 

G  X  XIX.  The  Commanders-in-Chief  of  the  belligerent 
fleets  must  see  that  the  above  Articles  are  properly  carried  out; 
they  will  have  also  to  see  to  cases  not  covered  thereby,  in  ac- 
cordance with  the  instructions  of  their  respective  Governments 
and  in  conformity  with  the  general  principles  of  the  present 
Convention. 

Compare  G  XXV. 

G  N  XX.  The  Signatory  Powers  shall  take  the  necessary 
measures  for  bringing  the  provisions  of  the  present  Convention 


NAVAL    WAR.  277 

to  the  knowledge  of  their  naval  forces,  and  especially  of  the 
members  entitled  thereunder  to  immunity,  and  for  making 
them  known  to  the  public. 

Compare  G  XXVI. 

G  N  XXI.  The  Signatory  Powers  likewise  undertake  to 
enact  or  to  propose  to  their  Legislatures,  if  their  criminal  laws 
are  inadequate,  the  measures  necessary  for  checking  in  time  of 
war  individual  acts  of  pillage  and  ill-treatment  in  respect  to 
the  sick  and  wounded  in  the  fleet,  as  well  as  for  punishing,  as 
an  unjustifiable  adoption  of  naval  or  military  marks,  the  un- 
authorized use  of  the  distinctive  marks  mentioned  in  Article 
V  by  vessels  not  protected  by  the  present  Convention. 

They  will  communicate  to  each  other,  through  the  Netherland 
Government,  the  enactments  f^r  preventing  such  acts  at  the 
latest  within  five  years  of  the  ratification  of  the  present  Conven- 
tion. 

Compare  G  XXI. 

G  X  XXII.  In  the  case  of  operations  of  war  between  the 
land  and  sea  forces  of  belligerents,  the  provisions  of  the  present 
Convention  do  not  apply  except  between  the  forces  actually  on 
board  ship. 

Parties  that  have  already  made  landings  are  subject  to 
the  Geneva  Convention. 


278  MEANS  OF  OFFENSE  AND  DEFENSE. 


-T 


CHAPTER  VI. 

MEANS  OF  OFFENSE  AND  DEFENSE. 

H  XXII.  The  right  of  belligerents  to  adopt  means  of  in- 
juring the  enemy  is  not  unlimited. 

Special  Conventions  and  Declarations  restricting  the 
means  of  injuring  the  enemy. — The  most  noEatte~special 
4"^~  Conventions  limiting  the  means  of  injuring  the  enemy  are 
.^  the   Declaration   of   St.   Petersburg,   the   two   Declarations 

drawn  up  at  the  First  Peace  Conference  against  the  use 
of  projectiles  diffusing  asphyxiating  gases,  and  expand- 
ing bullets,  the  Declaration  of  the  Second  Peace  Confer- 
ence against  discharging  projectiles  from  balloons  and  the 
Convention  of  the  same  Conference  relative  to  automatic 
submarine  contact  mines.     They  will  be  taken  up  in  order. 

The  St.  Petersburg  Declaration. — The  St.  Petersburg 
Declaration  reads  as  follows : 

Considering  that  the  progress  of  civilization  should  have 
the  effect  of  alleviating  as  much  as  possible  the  calamities 
of  war; 

That  the  only  legitimate  objects  which  states  should  en- 
deavor to  accomplish  during  war  is  to  weaken  the  military 
force  of  the  enemy; 

That  for  this  purpose  it  is  sufficient  to  disable  the  greatest 
possible  number  of  men; 

That  this  object  would  be  exceeded  by  the  employment 
of  arms  which  uselessly  aggravate  the  sufferings  of  dis- 
abled men,  or  render  their  death  inevitable ; 

That  the  employment  of  such  arms  would,  therefore,  be 
contrary  to  the  laws  of  humanity; 

The  contracting  parties  engage  mutually  to  renounce,  in 
case  of  war  among  themselves,  the  employment,  by  their  military 
or  naval  forces,  of  any  projectile  of  less  weight  than  four  hun- 
dred grammes,1  which  is  explosive,  or  is  charged  with  fulminat- 
ing or  inflammable  substances. 

The  limitation  of  the  weight  of  the  projectiles  was  to 

i  Fourteen  ounces  avoirdupois. 


SPECIAL  CONVENTIONS.  279 

confine  the  prohibition  to  bullets.  It  is  obyious  that  the 
use  of  shells  is  a  legitimate  means  of  warfare. 

Misinterpretation  of  the  preamble  of  the  St.  Petersburg 
Declaration. — The  second  clause  of  the  preamble  is  to  be 
interpreted  in  the  light  of  the  body  of  the  Declaration 
and  of  the  other  clauses  of  the  preamble  to  mean  that  the 
only  legitimate  object  which  states  should  endeavor  to 
accomplish  during  war  is  to  weaken  the  military  forces  of 
the  enemy,  that  is,  not  to  cause  them  useless  injury.  There 
was  no  occasion  for  laying  down  any  such  proposition  that 
the  weakening  of  the  military  forces  should  be  the  only  way 
of  bringing  pressure  to  bear  on  the  hostile  state,  thus  con- 
demning commercial  blockades  and  the  capture  of  private 
property  at  sea.  This  has  often  been  lost  sight  of  in  cit- 
ing this  clause.  The  United  States  is  not  a  party  to  this 
Declaration. 

Expanding  bullets — Projectiles  for  diffusing  asphyxiating 
gases. — The  two  declarations  of  the  First  Hague  Confer- 
ence still  in  force  are  as  follows : 

The  contracting  Powers  agree  to  forbid  the  employment  of 
projectiles  which  have  for  their  sole  purpose  the  diffusion  of 
asphyxiating  or  deleterious  gases. 

The  contracting  Powers  agree  to  forbid  the  employment  of 
bullets  which  expand  or  flatten  easily  in  the  human  body,  such 
as  bullets  the  jackets  of  which  do  not  entirely  cover  the  core  or 
are  provided  with  incisions. 

The  United  States  has  never  become  a  party  to  these 
Declarations.2  If  the  question  ever  becomes  a  practical 
one,  however,  both  of  these  means  of  injuring  the  enemy 
are  forbidden  to  the  United  States  in  case  they  are  "cal- 
culated to  cause  unnecessary  suffering,"  by  H  XXIII  (e). 
The  question  is  not  likely  to  become  a  practical  one,  as  there 
were  no  such  projectiles  as  those  described  in  the  first  Dec- 
laration in  existence  at  the  time  the  Declaration  was  drawn 
up  and  no  such  bullets  as  those  described  in  the  second 
Declaration  are  now  manufactured.3 

Discharge  of  projectiles  from  balloons. — The  Declaration 
drawn  up  at  the  Second  Peace  Conference  is  as  follows : 

The  Contracting  Powers  agree  to  prohibit,  for  a  period  ex- 
tending to  the  close  of  the  Third  Peace  Conference,  the  discharge 

2  See  supra,  pp.    132.   134. 

3  2  Am.  Jour,  of  Inter.  Law,  75. 


280  MEANS  OF  OFFENSE  AND  DEFENSE. 

of  projectiles  and  explosives  from  balloons  or  by  other  new  meth- 
ods of  a  similar  nature. 

This  is  the  renewal  of  the  Declaration  drawn  up  at  the 
First  Peace  Conference,  which  had  expired  by  reason  of 
its  five-year  limitation.  The  change  in  the  limitation  pre- 
vents another  lapse  before  the  next  Conference.  It  was 
thought  that  some  limitation  was  necessary,  as  with  im- 
proved methods  of  aerial  navigation  this  may  become  an 
effective  and  not  unnecessarily  cruel  means  of  warfare. 

Automatic  submarine  contact  mines. — The  Convention 
relative  to  the  laying  of  automatic  submarine  contact  mines 
is  as  follows: 

Inspired  by  the  principle  of  the  freedom  of  sea  routes, 
the  common  highways  of  all  nations; 

Seeing  that,  although  the  existing  position  of  affairs 
makes  it  impossible  to  forbid  the  employment  of  automatic 
submarine  contact  mines,  it  is  nevertheless  desirable  to 
restrict  and  regulate  their  employment  in  order  to  miti- 
gate the  severity  of  war  and  to  ensure,  as  far  as  possible, 
to  peaceful  navigation  the  security  to  which  it  is  entitled, 
despite  the  existence  of  war; 

Until  such  time  as  it  is  found  possible  to  formulate  rules 
on  the  subject  which  shall  ensure  to  the  interests  involved 
all  the  guarantees  desirable;  [the  Plenipotentiaries  of  the 
Contracting  Powers]  have  agreed  upon  the  following  pro- 
visions : 

Art.  I.    It  is  forbidden: 

1.  To  lay  unanchored  automatic  contact  mines,  except  when 
they  are  so  constructed  as  to  become  harmless  one  hour  at  most 
after  the  person  who  laid  them  ceases  to  control  them; 

2.  To  lay  anchored  automatic  contact  mines  which  do  not 
become  harmless  as  soon  as  they  have  broken  loose  from  their 
moorings; 

3.  To  use  torpedoes  which  do  not  become  harmless  when 
they  have  missed  their  mark. 

Art.  II.  It  is  forbidden  to  lay  automatic  contact  mines  off 
the  coast  and  ports  of  the  enemy,  with  the  sole  object  of  inter- 
cepting commercial  shipping. 

Art.  III.  When  anchored  automatic  contact  mines  are  em- 
ployed, every  possible  precaution  must  be  taken  for  the  security 
of  peaceful  shipping. 


AUTOMATIC   SUBMARINE   CONTACT    MINES.  281 

The  belligerents  undertake  to  do  their  utmost  to  render  these 
mines  harmless  within  a  limited  time,  and,  should  they  cease  to 
be  under  surveillance,  to  notify  the  danger  zones  as  soon  as 
military  exigencies  permit,  by  a  notice  addressed  to  ship  owners, 
which  must  also  be  communicated  to  the  Governments  through 
the  diplomatic  channel. 

Art.  IV.  Neutral  Powers  which  lay  automatic  contact  mines 
off  their  coasts  must  observe  the  same  rules  and  take  the  same 
precautions  as  are  imposed  on  belligerents. 

The  neutral  Power  must  inform  ship  owners,  by  a  notice  is- 
sued in  advance,,  where  automatic  contact  mines  have  been  laid. 
This  notice  must  be  communicated  at  once  to  the  Governments 
through  the  diplomatic  channel. 

Art.  V.  At  the  close  of  the  war,  the  Contracting  Powers 
undertake  to  do  their  utmost  to  remove  the  mines  which  they 
had  laid,  each  Power  removing  its  own  mines. 

As  regards  anchored  automatic  contact  mines  laid  by  one  of 
the  belligerents  off  the  coast  of  the  other,  their  position  must 
be  notified  to  the  other  party  by  the  Power  which  laid  them, 
and  each  Power  must  proceed  with  the  least  possible  delay  to 
remove  the  mines  in  its  own  waters. 

Art.  VI.  The  Contracting  Powers  which  do  not  at  present 
own  perfected  mines  of  the  pattern  contemplated  in  the  present 
Convention,  and  which,  consequently,  could  not  at  present  carry 
out  the  rules  laid  down  in  Articles  I  and  IIIJ  undertake  to 
convert  the  materiel  of  their  mines  as  soon  as  possible,  so  as  to 
bring  it  into  conformity  ivith  the  foregoing  requirements. 

Convention  incomplete. — This  Convention  is  to  remain 
in  force  for  seven  years,  but  unless  denounced  it  is  to  con- 
tinue in  force  after  the  expiration  of  that  period.  In  the 
event  of  the  question  not  having  been  already  reopened 
and  settled  by  the  Third  Peace  Conference  the  Contracting 
Powers  also  undertake  to  reopen  the  question  six  months 
before  the  expiration  of  the  seven  year  period.  It  was 
evidently  thought  at  the  time  this  period  was  fixed  that 
the  Second  Conference  would  meet  within  seven  years  in- 
stead of  eight,  as  finally  decided  on.  It  is  to  be  noticed 
that  the  placing  of  anchored  mines  on  the  high  seas  is  not 
prohibited.  This  was  bitterly  objected  to  on  the  part  of 
Great  Britain  which  desired  to  restrict  the  placing  of  these 
mines  at  least  to  a  distance  of  ten  miles  from  the  position 


282  MEANS  OF  OFFENSE  AND  DEFENSE. 

of  the  guns  on  land  and  to  make  more  effective  the  pro- 
hibition against  commercial  blockades  by  mines.  She  in- 
sisted that  her  position  in  attempting  to  confine  the  use 
of  these  mines  to  the  territorial  waters  of  the  belligerents 
and  for  strategic  purposes  was  supported  by  international 
law  independent  of  convention,4  and  in  this  could  claim 
the  support  of  the  provisional  action  of  the  Institute  of 
International  Law  in  1906. 5  That  the  Convention  did  not 
go  further  was  a  concession  to  belligerent  rights. 

H  XXIII.    In  addition  to  the  prohibitions  provided  by  spec- 
ial Conventions,  it  is  especially  forbidden: 
*V      (a)      To  employ  poison  or  poisoned  weapons; 

(b)  To  kill  or  wound  treacherously  individuals  belonging  to 
the  hostile  nation  or  army: 

Article  148  of  the  American  Instruction  reads  as  fol- 
lows : 

American  Article  against  assassination. — "Assassination. 
The  law  of  war  does  not  allow  proclaiming  either  an  indi- 
vidual belonging  to  the  hostile  army  or  a  citizen,  or  a  sub- 
ject of  the  hostile  government,  an  outlaw,  who  may  be 
slain  without  trial  by  any  captor,  any  more  than  the  mod- 
ern law  of  peace  allows  such  international  outlawry;  on 
the  contrary,  it  abhors  such  outrage.  The  sternest  retalia- 
tion should  follow  the  murder  committed  in  consequence 
of  such  proclamation,  made  by  whatever  authority.  Civil- 
ized nations  look  with  horror  upon  offers  of  rewards  for 
the  assassination  of  enemies,  as  relapses  into  barbarism." 

(c)  To  wound  or  hill  an  enemy  who,  having  laid  down  his 
arms,  or  having  no  longer  means  of  defense,  has  surrendered  at 
discretion; 

Quarter  even  to  those  who  have  violated  the  laws  of  war. 
— The  term  "surrender  at  discretion"  was  objected  to  on 
the  ground  that  it  implied  a  right  of  life  and  death  over 
the  prisoner,  and  it  was  urged  that  the  qualifying  phrase 
"at  discretion"  should  be  dropped;  but,  on  the  other  hand, 
it  was  urged  that  those  who  have  been  guilt}7,  of  violations 
of  the  laws  of  war  are  still  liable  to  suffer  death  at  the 
hands  of  their  captors,  so  that,  instead  of  the  qualifying 
phrase  making  the  provision   harsh,   it  rendered   it  more 

*  Westlake,  II  International  Law,  322-326. 
b  See  21  Anrmarie,  88,  et  seq.,  330,  et  seq. 


QUARTER.  28- 

humane  by  extending  even  to  these  the  privilege  of  quar- 
ter.6 

When  not  practicable. — Westlake  says:  "The  admitted 
case  in  which  it  is  not  practicable  is  that  which  occurs  dur- 
ing the  continuance  of  fighting,  when  the  achievement  of 
victory  would  be  hindered  and  even  endangered  by  stop- 
ping to  give  quarter  instead  of  cutting  down  the  enemy 
and  rushing  on."7 

(d)  To  declare  that  no  quarter  will  he  given;  "N 
Prohibition  of  declaration  of  "no  quarter." — The  need 

of  this  provision  against  the  declaration  of  no  quarter  is 
even  greater  than  that  against  the  refusal  of  quarter,  as 
instances  of  threats  to  give  no  quarter  have  been  more 
numerous  than  the  actual  refusal  to  give  it.  "A 

(e)  To  employ  arms,  projectiles  or  material  calculated  to 
cause  unnecessary  suffering; 

Prohibition  of  unnecessarily  cruel  arms  and  projectiles. 
— This  principle  is  applied  in  the  declarations  against  ex- 
plosive and  expanding  bullets,  so  that,  if  those  bullets  are 
unnecessarily  cruel,  the  signatories  of  this  article  are  just 
as  much  bound  not  to  use  them  as  are  the  powers  which 
have  adhered  to  the  express  declarations  against  them.  The 
declaration  which  Capt.  Crozier  wished  to  substitute  for 
the  declaration  against  expanding  bullets  was  along  these 
lines,8  although  in  forbidding  the  use  of  bullets  exceeding 
the  limit  necessary  to  place  a  man  immediately  liors  de 
combat  it  was  more  specific  and  so  of  independent  value. 

(f )  To  make  improper  use  of  a  flag  of  truce,  of  the  national  y 
flag  or  the  military  insignia  and  uniform  of  the  enemy,  as  well  •* 
as  the  distinctive  signs  of  the  Geneva  Convention. 

Uniform  of  the  enemy  may  be  used  for  approach  but  not 
for  fighting. — The  use  of  the  national  flag  and  of  the  uni- 
form of  the  enemy  is  allowed  for  purposes  of  approach,  but 
before  fighting  is  begun,  the  true  character  of  the  ship  or 
of  the  soldiers  must  be  disclosed.  This  right  of  approach 
is  well  settled,  although  made  little  if  any  use  of  in  recent 

6  Protocols   1   of  the  Committee  and  4  of  the  full  Conference,  Pari. 
Papers,  1875,  Vol.  82,  Misc.  No.  1. 
i  II  International  Law,  75. 
s  See  supra,  p.  132. 
a  See  also,  H,  XXIV. 


281  MEANS   OF  OFFENSE  AND   DEFENSE. 

times,  especially  on  land.  Complaints  of  fighting  in  the 
uniform  of  the  enemy,  however,  have  been  numerous. 

The  American  Instructions,  Article  64,  provide : 

"If  American  troops  capture  a  train  containing  uniforms 
of  the  enemy  and  the  commander  considers  it  advisable  to 
distribute  them  for  use  among  his  men,  some  striking  mark 
or  sign  must  be  adopted  to  distinguish  the  American  sol- 
dier from  the  enemy." 

(g)  To  destroy  or  seize  the  enemy's  property,  unless  such 
destruction  or  seizure  he  imperatively  demanded  by  the  necessi- 
ties of  war; 

Use  of  devastation. — This  provision  was  considered  super- 
fluous by  some,  as  the  treatment  of  enemy  property  is 
treated  in  much  greater  detail  in  the  subsequent  articles, 
but  the  later  articles  refer  especially  to  the  treatment  of 
property  by  an  occupying  army,  while  the  provisions  of 
the  present  article  especially  refer  to  its  treatment  in  con- 
nection with  active  military  operations.  In  other  words, 
it  refers  particularly  to  devastation  as  a  means  of  injuring 
the  enemy.  Devastation  was  formerly  considered  a  legiti- 
mate means  of  bringing  an  enemy  to  terms  or  of  diverting 
him  from  his  intended  plan  of  operations,  but  it  is  no  longer 
considered  proper  as  an  independent  military  operation, 
and  is  now  allowed  only  as  incidental  to  other  military 
measures,  as  where  the  destruction  of  houses  is  necessary 
to  clear  the  field  of  battle  or  where  whole  districts  are 
swept  of  supplies  in  order  to  prevent  their  use  by  the  enemy. 

Principles  of  H  XXIII  applicable  to  maritime  warfare 
also. — The  principles  of  the  above  prohibitions  apply  to 
naval  forces  equally  with  land  forces,  although  their  ap- 
plication to  naval  forces  has  not  yet  been  made  the  subject 
of  international  agreement. 

(h)  To  declare  abolished,  suspended  or  inadmissible  in  a 
Court  of  law  the  rights  and  actions  of  the  nationals  of  the  hostile 
party; 

Interpretation. — This  clause  was  introduced  at  the  Sec- 
ond Peace  Conference  by  the  German  delegation  and  has 
received  little  or  no  comment.  The  prohibition  against  the 
extinguishment  of  private  choses  in  action  is  merely  dec- 
laratory of  what  has  probably  been  the  law  for  many  years, 
but  the  prohibition  against  the  suspension  of  choses  in 
action  apparently  works  a  decided  change,  at  least  in  Anglo- 


SUSPENSION  OK  CHOSES  IN  ACTION.  285 

American  law.  A  literal  interpretation  of  the  clause  would 
not  work  a  change,  as  it  is  directed  at  declarations  of  the 
political  authorities,  whereas  in  the  United  States  and  Eng- 
land it  has  not  been  customary  to  make  such  declarations, 
but  the  suspension  of  the  choses  of  action  of  the  enemy 
has  been  considered  by  the  courts  to  arise  from  the  war 
itself.  The  intention  of  the  provision  is  clear,  however, 
that  these  choses  in  action  shall  not  be  suspended  by  the 
political  authorities  even  as  a  war  measure,  much  less  that 
they  shall  be  suspended  as  a  matter  of  course.  It  will, 
however,  be  a  question  for  the  courts  to  decide.  In  Eng- 
land the  plea  of  alien  enemy  has  been  enforced  with  a 
good  deal  of  strictness.  In  the  United  States,  on  the  other 
hand,  it  has  not  been  favorably  received,  so  that  the  courts 
are  liable  to  interpret  this  clause  with  the  liberality  which 
is  its  due. 

A  belligerent  is  likewise  forbidden  to  compel  the  nationals  of 
the  hostile  party  to  take  part  in  the  operations  of  war  directed 
against  their  own  country,  even  if  they  were  in  the  belligerent's 
service  before  the  commencement  of  the  war. 

This  corresponds  to  Article  XLIV  of  the  old  convention. 
The  universal  character  of  the  prohibition  is  probably 
brought  out  better  here  than  under  the  head  of  Occupation. 
There  are  similar  prohibitions  in  H  VI  and  H  LII.  In 
H  LII  the  Government  translation  reads  "military  opera- 
tions" for  the  same  expression  that  is  here  translated  "op- 
erations of  war."  The  latter  is  the  better  expression,  but 
the  difference  seems  not  to  have  the  significance  given  it 
by  Westlake.10  It  would  seem  that  the  latter  merely  ex- 
presses more  adequately  what  was  intended  to  be  expressed 
by  the  former. 

Services  not  to  be  required  of  nationals  of  the  enemy. — 
This  provision  forbids  forcing  the  nationals  of  one  bellig- 
erent into  the  hostile  army  or  compelling  them  to  labor  on 
works  of  offense  or  defense  in  the  theatre  of  war.  Beyond 
this  it  is  difficult  to  say  how  far  it  goes.  Count  Lanza  de- 
clared at  Brussels  that  "no  Government  would  engage  not 
to  press  guides  into  the  service,  not  to  employ  the  laborers 
of  the  country  on  lines  of  communication,  not  to  compel 
carriers  to  transport  the  means  of  subsistence,  and  to  per- 

10  II  International  Law,  269. 


286  MEANS  OF  OFFENSE  AND  DEFENSE. 

form  other  services."11  Compulsion  to  serve  as  guides  has 
now  been  regulated  by  H  XLIV,  but  otherwise  his  state- 
ment seems  to  be  still  accurate.  The  last  clause  specifying 
that  this  prohibition  holds  "even  if  they  were  in  the  bel- 
ligerent's service  before  the  commencement  of  the  war" 
was  added  at  the  Second  Conference. 

Inciting  to  treason  or  desertion  unlawful. — Westlake  adds 
that  "it  is  considered  unlawful  to  incite  the  enemy's  troops 
to  treason  or  desertion,  a  rule  which  was  probably  intro- 
duced for  the  mutual  convenience  of  commanders  and  by 
a  kind  of  chivalry  between  them  and  which  should  carry 
with  it  the  unlawfulness  of  enrolling  deserters  as  recruits 
*  *  *  |jU^  ji  js  not  considered  unlawful  to  stir  up  in- 
surrection in  the  enemy's  country."12 

H  XXIV.  Buses  of  war  and  the  employment  of  measures 
necessary  for  obtaining  information  about  the  enemy  and  the 
country  are  considered  permissible. 

Ruses  of  war. — This  article  must  be  read  subject  to  the 
numerous  exceptions  contained  in  the  other  articles  of  the 
Regulations.  While  strategems  are  a  perfectly  lawful 
means  of  warfare,  they  do  not  warrant  breaches  of  faith, 
treachery  or  the  use  of  the  Red  Cross  or  of  flags  of  truce 
for  other  than  their  acknowledged  purposes. 
^  H  XXV.  The  attach  or  bombardment ,  by  whatever  means, 
of  towns,  villages,  dwellings  or  buildings,  which  are  undefended 
is  prohibited. 

Undefended  towns  not  to  be  bombarded. — This  is  an  ap- 
plication of  the  principle  of  H  XXIII  (g)  that  property 
of  the  enemy  shall  not  be  seized  or  destroyed  except  where 
this  may  be  imperatively  demanded  by  the  necessities  of 
war.  The  necessities  of  war  cannot  demand  the  bombard- 
ment of  an  undefended  town  as  a  military  measure.  This 
article,  however,  does  not  deny  the  use  of  bombardment 
as  a  penal  measure  where  a  legitimate  demand  for  contri- 
butions or  requisitions  has  been  refused  or  where  the  popu- 
lation has  been  guilty  of  violating  the  laws  of  war,  or  as 
a  measure  of  retorsion ;  but  its  use  even  in  these  cases 
would  be  extreme  and  only  justified  by  imperative  necessity. 
The  phrase  "by  whatever  means"  was  added  by  the  second 
conference  so  as  to  include  bombardments  by  airships  or 

11  Protocol  4  of  the  Committee. 

12  II  International  Law,  76. 


BOMBARDMENTS. 


2S7 


other  means  which  the  ingenuity  of  man  may  devise.  At 
the  present  time,  however,  the  bombardment  of  even  de- 
fended towns  by  airships  is  prohibited  by  the  special  Dec- 
laration.13 

It  is  to  be  noticed  that  this  article  speaks  of  undefended, 
not  of  unfortified,  towns.  Only  where  there  are  no  forti- 
fications, no  troops,  and  no  open  resistance  by  the  popu- 
lation, does  this  article  apply. 

Bombardment  of  the  resident  portions  of  towns.— It  has 
been  questioned  whether  towns  separated  somewhat  from 
the  fortifications  which  defend  them  are  liable  to  bom- 
bardment. This  is  a  part  of  -the  larger  question  as  to 
whether  the  portions  of  towns  not  used  for  military  pur- 
poses are  exempt  from  bombardment.  It  must  be  admitted, 
however,  that  this  is  one  of  the  rigors  of  war  which  bel- 
ligerents have  held  to  be  so  useful  as  not  to  be  given  up. 
Of  its  hardship  there  can  be  no  question,  though  it  cannot 
compare  with  that  of  a  siege. 

H  XXVI.  The  officer  in  command  of  an  attaching  force 
must,  before  commencing  a  bombardment,  except  in  cases  of 
assault,  do  all  in  his  power  to  warn  the  authorities. 

Necessity  of  giving  warning  of  bombardment  except  in 
cases  of  assault. — Notice  is  not  required  in  case  of  assault, 
because  it  would  often  defeat  the  object  of  the  assault  by 
putting  the  enemy  on  guard  against  it.  The  exception  is 
more  specific  than  that  in  the  naval  convention,  which  only 
requires  notice  "if  the  military  situation  permits."14  If 
the  more  general  exception  is  desirable  for  naval  warfare 
it  is  hard  to  see  why  it  should  not  be  equally  desirable  in 
land  warfare.  The  original  Brussels  article  was  broader. 
It  made  an  exception  of  cases  of  "surprise."  Notice  in  case 
of  bombardment  is  ordinarily  required,  in  order  that  pre- 
cautions may  be  taken  for  the  safety  of  works  of  art,  etc., 
mentioned  in  the  following  article,  as  well  as  that  those  who 
wish  to  withdraw  from  the  town  may  do  so.  Such  with- 
drawal is  often  allowed  at  the  commencement  of  a  bom- 
bardment or  siege  even  when  it  is  refused  later.  At  neither 
time  may  the  withdrawal  be  regarded  as  a  strict  right. 

is  See  supra,  p.  279 ;   For  bombardments  by  naval  forces  see  infra, 
pp.  288-291. 

I*  See  infra,  p.  291. 


288  MEANS  OF  OFFENSE  AND  DEFENSE. 

H  XXVII.  In  sieges  and  bombardments  all  necessary  steps 
must  be  taken  to  spare,  as  far  as  possible,  buildings  dedicated 
to  religion,  art,  science  or  charitable  purposes,  historic  monu- 
ments, hospitals  and  places  where  the  sick  and  wounded  are 
collected,  provided  they  are  not  being  used  at  the  time  for  mili- 
tary purposes. 

It  is  the  duty  of  the  besieged  to  indicate  the  presence  of  such 
buildings  or  places  by  distinctive  and  visible  signs,  which  shall 
be  notified  to  the  enemy  beforehand. 

"Historic  monuments"  were  included  within  the  protec- 
tion of  this  article  by  the  Second  Conference  at  the  sug- 
gestion of  Greece. 

Sign  for  protection  of  churches,  etc. — As  the  Red  Cross 
is  designed  to  protect  hospitals  and  ambulances,  etc.,  it 
should  be  used  only  in  connection  with  them.  Some  other 
sign  is  necessary  in  the  case  of  churches,  museums,  schools, 
etc.  It  would  have  seemed  desirable  to  have  brought  this 
article  into  conformity  with  the  naval  Convention  by  re- 
cpriring  the  signs  which  are  there  specified  in  similar  cases15 
instead  of  leaving  the  matter  to  the  local  authorities,  but 
as  a  matter  of  fact  it  is  likely  that  the  practice  will  con- 
form. 

Bombardments  by  naval  forces. — Bombardments  by  naval 
forces  were  made  the  subject  of  the  following  convention 
by  the  Second  Conference: 

Animated  by  the  desire  to  realize  the  wish  expressed 
by  the  First  Peace  Conference  respecting  the  bombard- 
ment by  naval  forces  of  undefended  ports,  towns  and  vil- 
lages ; 

Whereas,  it  is  expedient  that  bombardments  by  naval 
forces  should  be  subject  to  rules  of  general  application, 
which  would  safeguard  the  rights  of  the  inhabitants  and 
assure  the  preservation  of  the  more  important  buildings, 
by  applying  as  far  as  possible  to  this  operation  of  war 
the  principles  of  the  Regulation  of  1899  respecting  the 
Laws  and  Customs  of  Land  War; 

Actuated,  accordingly,  by  the  desire  to  serve  the  inter- 
ests of  humanity  and  to  diminish  the  severity  and  distress 
of  war; 

|  the  Plenipotentiaries  of  the  Contracting  Powers]  have 
agreed  upon  the  following  provisions : 

i"  Sec  infra,  p.  290. 


BOMBARDMENTS    BY    NAVAL    FORCES.  289 

Art.  I.  The  bombardment  by  naval  forces  of  undefended 
ports,  towns,  villages,  dwellings  or  buildings  is  forbidden. 

A  place  cannot  be  bombarded  solely  because  automatic  sub- 
marine contact  mines  are  anchored  off  the  harbour. 

Reservations. — Compare  H  XXV.  Several  of  the  Pow- 
ers made  reservations  as  to  the  last  paragraph.  It  hardly 
seems  logical  that  the  particular  kind  of  defense  should 
make  a  difference  as  to  whether  a  town  may  be  bombarded, 
but  it  is  conceived  that  if  a  fleet  wished  to  occupy  a  town 
and  was  prevented  from  doing  so  by  automatic  contact 
mines  that  it  would  be  at  liberty  to  effect  its  purpose  by 
means  of  bombardment.  The  evident  idea  of  the  drafters 
was  that  a  fleet  might  wish  to  bombard  a  town  protected 
by  fortifications  merely  for  the  purpose  of  destroying  the 
fortifications,  but  that  automatic  contact  mines  could  not 
be  destroyed  in  that  way,  so  that  it  would  be  fruitless  to 
bombard  a  town  solely  because  they  happened  to  be  in 
front  of  it. 

Art.  II.  Military  works,  military  or  naval  establishments, 
depdts  of  arms  or  war  materiel,  workshops  or  plant  which  could 
be  utilized  for  the  needs  of  the  hostile  fleet  or  army,  and  the 
ships  of  war  in  the  harbour,  are  not,  however,  included  in  this 
prohibition.  The  commander  of  a  naval  force  may  destroy  them 
with  artillery,  after  a  summons  followed  by  a  reasonable  time 
of  waiting,  if  all  other  means  are  impossible,  and  when  the 
local  authorities  have  not  themselves  destroyed  them  within  the 
time  fixed. 

He  incurs  no  responsibility  for  any  unavoidable  damage 
which  may  be  caused  by  a  bombardment  under  such  circum- 
stances. 

If  for  military  reasons  immediate  action  is  necessary,  and 
no  delay  can  be  allowed  the  enemy,  it  is  understood  that  the  pro- 
hibition to  bombard  the  undefended  town  holds  good,  as  in  the 
case  given  in  paragraph  1,  and  that  the  commander  shall  take 
all  due  measures  in  order  that  the  town  may  suffer  as  little  harm 
as  possible. 

Art.  II  peculiar  to  naval  convention. — There  is  no  similar 
provision  in  the  convention  for  war  on  land.  It  was  prob- 
ably felt  that  the  army  would  have  no  such  difficulty  as 
the  navy  in  destroying  war  material  in  an  undefended 
town.  The  provision  that  the  other  parts  of  the  town  shall 
be  damaged  as  little  as  possible  is  notable. 

19 


290  MEANS  OF  OFFENSE  AND  DEFENSE. 

Art.  III.  After  due  notice  has  been  given,  the  bombardment 
of  undefended  ports,  towns,  villages,  dwellings,  or  buildings 
may  be  commenced,  if  the  local  authorities,  after  a  formal  sum- 
mons has  been  made  to  them,  decline  to  comply  with  requisitions 
for  provisions  or  supplies  necessary  for  the  immediate  use  of 
the  naval  force  before  the  place  in  question. 

These  requisitions  shall  be  in  proportion  to  the  resources  of 
the  place.  They  shall  only  be  demanded  in  the  name  of  the 
commander  of  the  said  naval  force,  and  they  shall,  as  far  as 
possible,  be  paid  for  in  cash;  if  not,  they  shall  be  evidenced  by 
receipts. 

Requisitions.  Military  execution.— As  is  the  case  with 
the  land  forces,  so  with  the  naval  forces  it  is  proper  to  re- 
sort to  bombardment  as  a  penalty  for  not  furnishing  requi- 
sitions. This  article  should  be  carefully  compared  with 
H  LII.  The  form  of  the  second  paragraph  is  in  accord 
with  Article  LII  of  the  old  convention  and  does  not  pre- 
scribe as  H  LII  does,  that  the  "payment  of  the  amount 
due  shall  be  made  as  soon  as  possible." 

Art.  IV.  Undefended  ports,  towns,  villages,  dwellings  or 
buildings  may  not  be  bombarded  on  account  of  failure  to  pay 
money  contributions. 

Money  contributions  by  naval  forces  forbidden.— Here 
naval  warfare  differs  from  that  on  land.  In  certain  cases 
money  contributions  may  be  exacted  by  military  forces,16 
and  in  those  cases  they  may  be  enforced  by  the  bombard- 
ment of  undefended  towns,  but  the  reasons  for  allowing 
contributions  by  land  forces  do  not  apply  to  naval  forces. 
The  latter  would  be  too  much  of  the  nature  of  ransoms 
from  pillage. 

Art.  V.  In  bombardments  by  naval  forces  all  the  necessary 
measures  must  be  taken  by  the  commander  to  spare  as  far  as 
possible  sacred  edifices,  buildings  used  for  artistic,  scientific  or 
charitable  purposes,  historic  monuments,  hospitals  and  places 
where  the  sick  or  wounded  are  collected,  on  the  understanding 
that  they  are  not  used  at  the  same  time  for  military  purposes. 
It  is  the  duty  of  the  inhabitants  to  indicate  such  monuments, 
edifices  or  places  by  visible  signs,  which  shall  consist  of  large 
stiff  rectangular  panels  divided  diagonally  into  two  coloured 
triangular  portions,  the  upper  portion  black,  the  lower  portion 
white. 

16  See   infra,  p.   314. 


BOMBARDMENTS    BY    NAVAL    FORCES.  291 

Improvement  over  land  convention. — Compare  H  XXVII. 
The  specification  of  the  kind  of  sign  to  be  used  is  a  great 
improvement. 

Art.  VI.  If  the  military  situation  permits,  the  commander 
of  the  attaching  naval  force,  before  commencing  the  bombard- 
ment must  do  his  utmost  to  warn  the  authorities. 

Compare  H  XXVI.  As  already  pointed  out,  the  proviso, 
"if  the  military  situation  permits,"  might  well  be  substi- 
tuted in  H  XXVI  for  "except  in  cases  of  assault." 

Art.  VII.  A  town  or  place,  even  when  taken  by  storm,  may 
not  be  pillaged. 

Compare  H  XXVIII. 

H  XXVIII.  The  pillage  of  a  town  or  place,  even  when  taken 
by  assault,  is  prohibited. 

Towns  taken  by  assault  not  to  be  pillaged. — The  pillage 
of  a  town  taken  by  assault  and  the  refusal  of  quarter  to 
its  defenders,  especially  where  there  had  been  an  obstinate 
resistance,  had  seemed  to  be  so  unavoidable  as  to  have  been 
recognized  in  times  past  as  legitimate,  even  when  it  was 
regretted.  So  well  established  was  the  old  rule  that  it  was 
deemed  necessary  to  have  this  special  article  in  ^addition 
to  the  later  article  prohibiting  pillage  in  general. 

H  XXIX.  A  person  can  only  be  considered  a  spy  when,  act- 
ing clandestinely  or  on  false  pretenses,  he  obtains  or  endeavors 
to  obtain  information  in  the  zone  of  operations  of  a  belligerent, 
with  the  intention  of  communicating  it  to  the  hostile  party. 

Thus,  soldiers  not  wearing  a  disguise  who  have  penetrated 
into  the  zone  of  operations  of  the  hostile  army,  for  the  purpose 
of  obtaining  information,  are  not  considered  spies.  Similarly, 
the  following  are  not  considered  spies:  Soldiers  and  civilians, 
carrying  out  their  mission  openly,  intrusted  with  the  delivery 
of  despatches  intended  either  for  their  own  army  or  for  the 
enemy's  army.  To  this  class  belong  likewise  persons  sent  in 
balloons  for  the  purpose  of  carrying  despatches  and,  generally, 
of  maintaining  communications  between  the  different  parts  of 
an  army  or  a  territory. 

Seeking  information  within  the  lines  of  the  enemy  clan- 
destinely the  essence  of  spying. — By  a  soldier  not  in  dis- 
guise is  meant  a  soldier  in  uniform.  It  was  urged  at  Brus- 
sels that,  so  long  as  a  soldier  is  capable  of  identification 
as  such,  he  should  be  entitled  to  the  benefit  of  the  second 
paragraph  since  it  is  to  be  presumed  that  he  is  acting  with 


292  MEANS  OF  OFFENSE  AND  DEFENSE. 

honorable  motives,  and  therefore  should  not  be  subject  to 
the  same  treatment  as  the  professional  spy.  But  it  was  the 
opinion  of  the  Conference  that  the  act  should  be  looked 
to  and  not  the  motive.17  The  Conference  appeared  to  re- 
gard spies  generally  as  scamps,  who  deserve  the  treatment 
they  get. 

Balloonists  not  spies. — As  acting  secretly  is,  by  the  first 
paragraph,  made  one  of  the  essentials  of  spying,  balloonists 
cannot  be  considered  as  spies,  even  if  they  do  not  come 
within  the  terms  of  the  example  given  in  the  second  para- 
graph and  are  not  carrying  despatches,  but  are  engaged 
in  observing  the  positions  and  movements  of  the  enemy. 

H  XXX.  A  spy  taken  in  the  act  shall  not  be  punished  with- 
out previous  trial. 

A  spy  has  a  right  to  trial. — This  principle  should  be  ap- 
plied in  every  case  where  penalties  are  inflicted  under  the 
laws  of  war. 

H  XXXI.  A  spy  who,  after  rejoining  the  army  to  which  he 
belongs,  is  subsequently  captured  by  the  enemy,  is  treated  as  a 
prisoner  of  war,  and  incurs  no  responsibility  for  his  previous 
acts  of  espionage. 

Spying  wiped  out  by  successful  termination. — Spying  is 
one  of  those  acts  which  are  not  contrary  to  the  laws  of 
war,  but  which  may  be  of  great  injury  to  a  belligerent, 
and  which  he  may  therefore  punish  if  he  can  catch  the 
offender  in  the  act.  The  principle  is,  "Catch  me  if  you 
can;  but  if  you  can't,  you  have  no  right  to  punish  me." 

17  Protocol  4  of  the  Full  Conference. 


NONHOSTILE  INTERCOURSE  OE  BELLIGERENTS.  293 


CHAPTEE  VII. 

NONHOSTILE    INTERCOURSE    OF    BELLIGERENTS. 

H  XXXII.    A  person  is  regarded  as  bearing  a  flag  of  truce    ~J 
who  has  been  authorized  by  one  of  the  belligerents  to  enter  into      '^ 
communication  with   the   other,  and  who   advances   bearing  a 
white  flag.    He  has  a  right  to  inviolability,  as  well  as  the  trum- 
peter, bugler  or  drummer,  the  flag-bearer  and  interpreter  who 
may  accompany  him. 

H  XXXIII.     The  commander  to  whom  a  flag  of  truce  is     J\ 
sent  is  not  in  all  cases  obliged  to  receive  it. 

He  may  take  all  the  necessary  steps  to  prevent  the  envoy  tak- 
ing advantage  of  his  mission  to  obtain  information. 

In  case  of  abuse,  he  has  the  right  to  detain  the  envoy  tem- 
porarily. 

The  flag  of  truce  not  to  be  misused. — The  provisions  of 
this  article  are  necessary  to  prevent  the  flag  of  truce  from 
being  used  either  to  gain  time,  or  to  deprive  the  enemy 
of  an  advantage,  or  to  discover  his  movements.  If  the 
bearer  of  a  flag  of  truce  presents  himself  during  an  en- 
gagement, the  enemy  is  not  obliged  to  forego  an  advantage 
which  he  is  about  to  gain  and  instantly  to  cease  firing,  and 
if  the  bearer  of  the  flag  of  truce  is  accidentally  injured  no 
blame  is  incurred  by  the  other  belligerent. 

"If  the  flag  proceeds  from  the  enemy's  lines  during  a 
battle,  the  ranks  which  it  leaves  must  halt  and  cease  their 
fire.  When  the  bearer  displays  his  flag,  he  will  be  sig- 
nalled by  the  opposing  force,  either  to  advance  or  to  re- 
tire; if  the  former,  the  forces  he  approaches  will  cease  fir- 
ing ;  if  the  latter,  he  must  instantly  retire,  for,  if  he  should 
not,  he  may  be  fired  upon."1 

Declaration  not  to  receive  flag  of  truce  for  fixed  period 
disapproved  of. — The  Brussels  Declaration  contained  a  pro- 
vision recognizing  the  right  of  a  commander  to  refuse  to 
receive  the  bearer  of  flags  of  truce  for  a  fixed  period,  but 
at  The  Hague  it  was  thought  that  this  was  a  practice  to 
be  regarded  with  disfavor  and  the  provision  was  dropped. 

i  Halleck,  International  Law,  II,  p.  334. 


294  NONHOSTILE   INTERCOURSE   OF   BELLIGERENTS. 

The  bearer  of  a  flag  of  truce  may  be  blindfolded.— The 
bearer  of  a  flag  of  truce  may  be  blindfolded  and  prevented 
from  holding  communication  with  persons  other  than  those 
designated  to  conduct  negotiations,  in  order  to  prevent  his 
obtaining  information. 

H  XXXIV.  The  envoy  loses  his  rights  of  inviolability  if 
it  is  proved  in  a  clear  and  incontestable  manner  that  he  has  taken 
advantage  of  his  privileged  position  to  provoke  or  commit  an 
act  of  treachery. 

H  XXXV.  Capitulations  agreed  upon  between  the  contract- 
ing parties  must  take  into  account  the  rules  of  military  honour. 

Once  settled,   they  must   be  scrupulously   observed   by  both 

parties. 
Powers  of  a  commander  with  respect  to  capitulations. — 

The  terms  of  a  capitulation  may  vary  from  the  absolute 
surrender  of  a  place  or  of  a  body  of  troops  to  the  grant 
of  "all  the  honors  of  war,"  including  the  right  to  march 
out  with  colors  flying  and  drums  beating.  Where  there  has 
been  no  express  delegation  of  powers,  the  grant  of  more 
favorable  terms  than  these  is  beyond  the  powers  of  a 
commander,  and  if  his  government  refuses  to  ratify  the 
capitulation  there  can  be  no  occasion  for  charges  of  bad 
faith  or  double-dealing.2  There  is  less  likelihood  of  a  com- 
mander's acting  in  excess  of  his  powers  today,  however, 
than  there  was  formerly,  as  he  is  likely  to  keep  in  close 
touch  with  his  government  by  telegraph. 

Property  not  to  be  destroyed  between  the  signing  and 
execution  of  capitulations. — The  American  Instructions, 
Article  144,  provide:  "So  soon  as  a  capitulation  is  signed, 
the  capitulator  has*  no  right  to  demolish,  destroy,  or  injure 
the  works,  arms,  stores  or  ammunition  in  his  possession, 
during  the  time  which  elapses  between  the  signing  and  the 
execution  of  the  capitulation,  unless  otherwise  stipulated 
in  the  same." 

H  XXXVI.  An  armistice  suspends  military  operations  by 
mutual  agreement  between  the  belligerent  parties.  If  its  dura- 
tion is  not  defined,  the  belligerent  parties  may  resume  opera- 
tions at  any  time,  provided  always  that  the  enemy  is  warned 
within  the  time  agreed  upon,  in  accordance  with  the  terms  of 
the  armistice. 

Use  of  the  terms,  suspension  of  arms,  truce  and  armistice. 

aHalleck,  International  Law,  II,  pp.  319-320. 


ARMISTICES.  295 

— International  jurists,  including  British  and  American, 
usually  make  a  distinction  between  "suspensions  of  arms," 
temporary  and  local  agreements,  and  "armistices,"  of  a 
more  general  nature.  This  distinction  is  also  a  matter  of 
Continental  usage,  but  it  is  not  found  in  American  and 
British  practice,  in  which  the  terms  truce  and  armistice 
denote  loosely  almost  any  suspension  of  hostilities.  On  the 
Continent,  the  armistice  is  marked  by  the  fixing  of  a  neu- 
tral zone  between  the  hostile  armies,  which  does  not  exist 
in  the  suspension  of  arms. 

H  XXXVII.  An  armistice  may  be  general  or  local.  The 
first  suspends  the  military  operations  of  the  belligerent  States 
everywhere;  the  second  only  between  certain  fractions  of  the 
belligerent  armies  and  within  a  fixed  radius. 

What  is  permitted  during  an  armistice  should  be  ex- 
pressly stipulated. — To  avoid  recriminations  it  is  desirable 
that  just  what  is  and  what  is  not  permitted  during  an 
armistice  should  be  the  subject  of  express  stipulation  as 
the  rule  that  advantage  cannot  be  taken  of  an  armistice 
to  do  acts  which  the  enemy  could  prevent  but  for  the  armis- 
tice, is  difficult  of  application  and  not  universally  rec- 
ognized.3 

The  American  Instructions,  Article  143,  provide:  "When 
an  armistice  is  concluded  between  a  fortified  place  and  the 
army  besieging  it,  it  is  agreed  by  all  the  authorities  on  this 
subject  that  the  besieger  must  cease  all  extension,  perfec- 
tion, or  advance  of  his  attacking  works,  as  much  as  from 
attacks  by  main  force. 

"But  as  there  is  a  difference  of  opinion  among  martial 
jurists  whether  the  besieged  have  the  right  to  repair 
breaches  or  to  erect  new  works  of  defense  within  the  place 
during  an  armistice,  this  point  should  be  determined  by 
express  agreement  between  the  parties." 

Especially  as  to  the  supply  of  provisions  in  case  of  a  siege. 
— The  introduction  of  provisions  into  a  besieged  place  dur- 
ing an  armistice  cannot  be  demanded  of  strict  right.  It 
is  a  question  above  all  others  that  should  be  made  the  mat- 
ter of  express  stipulation. 

H  XXXVIII.  An  armistice  must  be  notified  officially  and  in 
good  time  to  the  competent  authorities  and  to  the  troops.    Hos- 

3  French  Manual,  p.  62. 


f- 


296  NONHOSTILE    INTERCOURSE   OF   BELLIGERENTS. 

tilities  are  suspended  immediately  after  the  notification,  or  on 
the  date  fixed. 

Notification  of  armistice  to  be  made  to  proper  parties. — 
Unofficial  notification  is  not  binding  on  those  to  whom  it 
is  made,  but  it  puts  them  on  their  guard  according  to  the 
reliability  of  its  source.  Where  the  commencement  of  an 
armistice  is  set  for  a  certain  date,  and  acts  are  done  after 
that  date  in  contravention  of  it  through  excusable  lack  of 
notice,  no  liability  to  the  other  belligerent  is  incurred  for 
them,  though  restitution  must  be  made. 

H  XXXIX.  It  rests  with  the  contracting  parties  to  settle, 
in  the  terms  of  the  armistice,  what  communications  may  be  held 
in  the  theatre  of  war  with  the  inhabitants  and  between  the  in- 
habitants of  one  belligerent  State  and  those  of  the  other. 

Neutral  zone  frequently  established  in  armistices. — As  al- 
ready noticed,  the  establishment  of  a  neutral  zone  between 
the  hostile  armies  is  an  incident  of  armistices  as  distin- 
guished from  suspensions  of  arms  in  Continental  Europe. 
Where  there  is  no  such  established  practice,  it  is  frequently 
stipulated  in  the  armistice. 

H  XL.  Any  serious  violation  of  the  armistice  by  one  of  the 
parties  gives  the  other  party  the  right  of  denouncing  it,  and 
even,  in  cases  of  urgency,  of  recommencing  hostilities  im- 
mediately. 

H  XLI.  A  violation  of  the  terms  of  the  armistice  by  private 
persons  acting  on  their  own  initiative  only  entitles  the  injured 
party  to  demand  the  punishment  of  the  offenders  or,  if  neces- 
sary, compensation  for  the  losses  sustained. 


MILITARY  OCCUPATION — RIGHTS  AND  DUTIES  AS  TO  PERSONS.    297 


CHAPTER  VIII. 

MILITARY    OCCUPATION — RIGHTS    AND   DUTIES    AS   TO    PERSONS. 

H  XLII.    Territory  is  considered  occupied  when  it  is  actually      -1 
placed  under  the  authority  of  the  hostile  army. 

The  occupation  extends  only  to  the  territory  where  such  au- 
thority has  been  established  and  can  be  exercised. 

Occupation  must  be  effective. — The  general  principle  is 
clear.  Occupation  exists  only  where  the  authority  of  the 
invading  belligerent  can  be  effectively  exercised.  There  is 
no  such  thing  as  occupation  by  proclamation.  On  this 
there  is  no  disagreement. 

How  far  occupation  is  analogous  to  blockade. — To  what 
extent,  however,  occupation  need  be  evidenced  by  visible 
signs  is  a  harder  question  and  one  that  has  given  rise  to 
much  discussion.  At  Brussels,  Gen.  Voigts-Rhetz,  the  Ger- 
man delegate,  while  agreeing  with  the  rest  of  the  Confer- 
ence on  the  necessity  of  the  effectiveness  of  occupation,  ex- 
pressed, as  has  been  seen,  a  strong  disapproval  of  an  analogy 
being  drawn  between  occupation  and  blockade.1  There 
must  be  large  areas  where,  although  the  occupying  army 
may  make  itself  felt  in  case  of  need,  it  does  not  keep  troops 
permanently  stationed.  Such  is  the  result  of  all  military 
experience.  Col.  Hammer,  the  Swiss  delegate,  replied  that 
in  each  district  occupied,  there  should  be  some  fact  which 
can  be  seized  upon  by  the  inhabitants  to  indicate  the  au- 
thority claimed  by  the  enemy.  "One  man,  provided  he 
be  respected,  a  post  or  telegraph  office,  a  Commission  of 
any  kind  established  in  the  district  and  performing  its  func- 
tions without  opposition,  would  suffice."2 

Application  of  rule  that  occupation  must  be  effective  a 
matter  for  each  belligerent. — This  suggestion  was  not  really 
antagonistic  to  the  views  of  Gen.  Voigts-Rhetz,  who  was 
evidently  defending  flying  columns  from  the  attacks  which 
had  been  made  on  them,  but  he  did  not  see  fit  to  adopt  it, 
and  the  Conference  finally  avoided  the  point  by  adopting 

i  Protocol  10  of  the  Committee,  supra,  p.  106. 
2  Ibid.   . 


298  MILITARY  OCCUPATION. 

a  different  phraseology.  The  force  of  Col.  Hammer's  sug- 
gestion can  not  be  questioned,  but  it  would  seem  best  to 
deal  with  the  matter  by  national  laws  rather  than  to  in- 
corporate it  in  an  international  code.  The  necessity  of  ef- 
fectiveness being  established  in  principle,  it  is  fortunate 
that  the  details  of  its  execution  have  been  left  to  the  bel- 
ligerents themselves. 

Beginning  and  end  of  occupation.  Temporarily  success- 
ful uprisings. — The  accepted  criterion  of  the  commence- 
ment of  occupation  exists  in  the  cessation  of  local  resist- 
ance. The  criterion  of  its  termination,  however,  is  subject 
to  more  doubt.  Rolin-Jaequemyns  has  suggested,  and  his 
suggestion  is  embodied  in  the  French  Manual,  that  occupa- 
tion may  be  said  to  exist  so  long  as  the  belligerent  to  which 
the  territory  belongs  is  unable  to  exercise  his  authority 
there  publicly.3  The  conclusion  drawn  from  this  in  the 
Manual  is  that  a  rebellion  momentarily  triumphant  is  not 
sufficient  to  interrupt  occupation  and  to  free  the  inhabitants 
from  the  obedience  due  the  occupant.*  While  this  is  true 
to  the  extent  that  a  reasonable  time  must  be  given  to  sup- 
press insurrection,  before  the  occupation  can  be  said  to 
have  ceased,  still  the  general  principle  would  seem  directly 
contrary  to  the  principle  adopted  at  The  Hague,  that  occu- 
pation must  be  effective.  The  authority  of  the  enemy  is 
based  on  his  actual  power.  If  that  ceases,  it  would  seem 
that  his  authority  also  ceases  and  that  that  of  sovereign 
reverts.  In  other  words,  if  the  power  of  the  occupant  is 
effectively  displaced  for  the  time  being,  that  fact  in  itself 
shows  that  his  occupation  has  ceased,  and  that  the  displaced 
occupant  has  henceforth  over  the  inhabitants  only  the  rights 
he  would  have  in  unoccupied  territory. 

H  XLIII.  The  authority  of  the  legitimate  poiver  having  in 
fact  passed  into  the  hands  of  the  occupant,  the  latter  shall  ta~ke 
all  the  measures  in  his  power  to  restore  and  ensure,  as  far  as 
possible,  public  order  and  safety,  while  respecting  unless  abso- 
lutely prevented,  the  laws  in  force  in  the  country. 

Authority  to  govern  occupied  territory  passes  temporarily 
to  the  occupant. — The  principle  of  this  article  is  that  there 
cannot  be  two  governing  authorities  in  the  same  territory 
at  the  same  time.    There  should  be  some  authority,  for  with- 

3  Revue  de  Droit  International,  7,  p.  99. 
*Pp.  87-88. 


AUTHORITY  OF  OCCUPANT.  299 

out  it  law  would  be  disregarded  and  the  complex  social 
and  business  life  of  today  paralyzed.  But  territorial  au- 
thority can  amount  to  little  without  the  power  to  make 
itself  respected,  and  this  power  for  the  time  being  exists 
only  in  the  occupant.  Therefore,  this  authority,  that  is, 
the  authority  to  execute  the  law  and  to  enact  such  laws  as 
are  necessary  for  the  temporary  needs  of  the  occupied  ter- 
ritory, passes  to  the  occupant  and  the  authority  of  the  legit- 
imate sovereign  to  do  these  things  is  for  the  time  suspended. 
This  authority  to  govern,  however,  is  not  sovereignty.  That 
exists  still  in  the  legitimate  power  till  it  is  transferred  by 
treaty  or  lost  by  conquest,  and  till  then  the  nationality 
of  the  inhabitants  and  of  the  territory  remains  unchanged. 

Personal  authority  over  its  citizens  still  continues  in  the 
legitimate  power. — But,  while  the  territorial  authority  of 
the  legitimate  power  is  for  the  time  suspended,  its  personal 
authority  over  its  subjects  still  continues.  Its  territorial 
legislation,  such  as  tariff  laws  or  administrative  regula- 
tions, may  be  suspended  in  the  occupied  territory,  but  this 
does  not  deprive  it  of  its  authority  over  its  subjects,  which 
exists  the  world  over.  As  long  as  its  personal  legislation 
does  not  amount  to  an  attempt  to  govern  the  occupied  ter- 
ritory, but  is  really  directed  at  the  personal  actions  of  its 
subjects,  it  is  within  the  authority  of  the  sovereign  and 
binding  on  the  subjects.  The  legitimate  power  may  call 
on  its  subjects  to  enlist  in  its  armies;  it  may  forbid  them 
to  serve  under  the  enemy;  and  it  may  even  incite  them  to 
insurrection. 

Duty  to  preserve  public  life  and  social  order  falls  on 
occupant. — The  substitution  of  the  occupant  for  the  legiti- 
mate power  as  the  territorial  authority,  throws  on  it  the 
duty  of  insuring  to  the  inhabitants  as  far  as  possible  free- 
dom from  disorder  and  protection  to  their  persons  and 
property.  Some  continental  writers  are  inclined  to  imply 
from  this  duty  on  the  part  of  the  occupant  a  reciprocal 
obligation  on  the  part  of  the  inhabitants  so  broad  as  to 
render  them  practically  prisoners  on  parole.  Certain  Eng- 
lish writers,  on  the  other  hand,  see  in  it  an  obligation  in- 
curred in  the  pursuit  of  the  occupant's  own  ends,  an  ob- 
ligation which  the  inhabitants  would  only  too  gladly  have 
avoided  and  which  does  not  deprive  them  of  any  rights 


300  MILITARY  OCCUPATION. 

of  resistance  against  the  enemy  which  they  had  previous 
to  the  occupation. 

Conflicting  views  as  to  the  duty  of  the  inhabitants  towards 
the  occupant. — There  would  appear  to  be  a  large  measure 
of  truth  in  both  these  views,  contradictory  as  they  are  at 
some  points.  Insofar  as  the  occupant  acts  as  the  terri- 
torial authority  for  the  purpose  of  insuring  order  and  ex- 
ecuting the  laws,  and  not  for  his  own  immediate  belligerent 
purposes,  it  would  appear  to  be  incontestable  that  the  in- 
habitant does  owe  him  obedience.  It  would  be  a  hard  rule 
placing  on  him  the  burden  of  punishing  ordinary  crime  or 
of  carrying  out  such  measures  as  those  of  sanitation,  if  the 
inhabitants  were  not  to  be  under  any  obligation  to  assist 
him  in  them  or  to  render  him  the  obedience  due  with  re- 
gard to  such  things  from  every  inhabitant  to  the  govern- 
ment under  which  he  lives. 

Duty  of  obedience  owed  him  only  while  he  is  trying  to 
preserve  public  life  and  social  order. — So  long,  then,  as 
the  occupant  is  acting  as  the  territorial  authority  in  car- 
rying out  the  ordinary  purposes  of  government,  and  not 
for  his  own  belligerent  purposes,  the  inhabitants  owe  him 
obedience;  but,  when  he  goes  further  and  takes  measures 
which  are  for  his  own  belligerent  purposes,  it  would  seem 
that  the  inhabitants  far  from  owing  him  obedience,  may 
still  look  upon  him  as  the  enemy  of  the  government  to  which 
they  owe  allegiance,  and,  so  far  as  his  orders  are  hostile 
to  that  government,  may  disregard  them  as  far  as  they  can 
reasonably  do  so.  Where  certain  acts  are  in  themselves 
offenses  against  the  laws  of  war,  the  inhabitants  are  bound 
to  abstain  from  them,  but  this  is  not  because  of  obedience 
due  to  the  occupant  but  of  respect  due  to  the  laws  of  war. 

Civil  and  penal  laws  not  to  be  changed. — Unless  abso- 
lutely prevented,  the  occupant  must  respect  the  laws  in 
force  in  the  country.  Civil  and  penal  laws  should  remain 
untouched,  while  political  and  administrative  laws  should 
be  modified  only  so  far  as  changes  are  imperative.  Laws 
of  recruitment  are  necessarily  suspended,  as  part  of  the 
law  of  the  territory  occupied,  and  fiscal  laws,  such  as  those 
of  taxation  and  of  administrative  organization,  are  liable 
to  be  suspended  as  a  matter  of  fact  by  the  flight  of  the 
officials,  who  alone  are  familiar  with  them.     Constitutional 


MARTIAL   LAW.  301 

privileges,  such  as  the  freedom  of  the  press,  the  right  of 
assembly,  the  right  to  bear  arms,  and  the  right  of  suffrage, 
are  usually  suspended,  as  ordinarily  in  case  of  martial  law. 

Occupant  may  make  provisional  regulations  for  benefit 
of  occupied  territory. — The  occupant  may  enact  such  pro- 
visional regulations  as  the  suspension  of  the  legitimate  au- 
thority, his  own  welfare  and  the  good  of  the  territory  render 
necessary.  He  may  even  go  so  far  as  to  establish  pro- 
visional governments,  based  on  new  rules  of  suffrage,  if 
such  a  measure  will  aid  him  in  the  settlement  of  the  war. 
But  he  must  not  attempt  to  change  the  Constitution  of  the 
country,  nor  do  any  act  implying  a  change  in  the  nation- 
ality of  the  people  or  of  the  territory. 

Martial  law.  Notice  to  the  inhabitants. — One  of  the  most 
important  of  the  rights  of  the  occupant  is  the  enforcement 
of  martial  law.  This  right  springs  from  the  occupation  it- 
self, without  notice;  but  "it  is  the  duty  of  the  occupying 
military  authority  to  inform  the  inhabitants  at  the  earliest 
practicable  moment  of  the  powers  that  he  exercises  as  well 
as  to  define  the  limits  of  the  occupied  territory."4  During 
the  Franco-Prussian  "War  these  notices  were  affixed  in  each 
canton,  about  72  square  miles  in  extent,  and  took  effect 
immediately  throughout  the  canton.5 

Offenses  arising  from  noncombatant  character  of  offend- 
ers.— Perhaps  the  most  important  class  of  offenses  under 
martial  law  is  that  arising  from  the  nonbelligerent  char- 
acter of  the  offenders.  The  smaller  powers  at  Brussels 
were  unwilling  to  admit  that  there  might  not  be  acts  of 
individual  hostility,  such  as  the  blowing  up  of  a  bridge, 
which  would  be  legal  if  done  in  unoccupied  territory  in  the 
face  of  an  advancing  army,6  although  those  members  of 
the  Institute  of  International  Law  who  afterwards  consid- 
ered this  point,  were  of  opinion  that  there  were  not;7  but 
even  the  smaller  powers  seemed  to  feel  no  hesitancy  in  rec- 
ognizing the  illegality  of  such  acts  in  occupied  territory. 
Such  acts  in  unoccupied  territory  have  been  of  such  rare 
occurrence,  however,  that  no  usage  has  grown  up  with  re- 
gard to  them.     In  occupied  territory,  on  the  other  hand, 

*  Rule  32  of  the  Oxford  Manual. 

5  Hall,  Inter.  Law,  p.  500. 

6  Protocol  14  of  the  Committee. 

7  Revue  de  Droit  Inter.,  7,  pp.  109,  484-489. 


302  MILITARY  OCCUPATION. 

they  have  been  so  frequent  that  their  illegality  has  been  so 
firmly  established  as  not  to  be  questioned.  If  a  distinc- 
tion should  be  drawn  in  favor  of  such  acts  in  unoccupied 
territory,  it  might  be  made  on  the  ground  that  there  the 
national  law  is  still  in  full  vigor,  so  that  its  restraining 
force  is  sufficient,  without  making  an  act  of  this  kind  an 
offense  against  the  law  of  war.  In  occupied  territory,  re- 
spect for  the  ordinary  law  is  so  apt  to  be  shaken  that,  un- 
less acts  of  this  kind  are  made  absolutely  condemnable  by 
the  law  of  war  itself,  there  is  likely  to  be  no  sufficient  guar- 
antee against  them. 

Duty  to  respect  the  law  of  war. — The  duty  to  abstain 
from  such  acts  does  not  arise  therefore  from  a  duty  of 
obedience  to  the  occupant,  but  from  the  obligation  to  re- 
spect the  law  of  war,  which  is  not  only  a  part  of  Interna- 
tional Law,  but  a  part  of  the  national  law  of  the  country 
whose  territory  is  occupied,  provided  that  country  is  itself 
within  the  pale  of  International  Law.  The  laws  of  war 
forbid  it,  because  of  the  useless  disorder  and  loss  of  life 
and  property  which  disobedience  entails. 

Acts  of  violence. — Notable  among  the  acts  of  violence 
thus  prohibited  are  the  killing,  wounding  or  robbing  of 
troops  of  the  enemy  or  their  suite;  destroying  bridges, 
canals,  telegraph  lines  and  railroads;  rendering  routes  im- 
passable, and  burning  the  munitions  of  war  or  the  pro- 
visions of  the  enemy  or  the  quarters  of  his  troops.  The 
commission  of  such  acts  by  nonbelligerents  is  much  more 
likely  to  result  in  the  injury  of  the  inhabitants  than  in  that 
of  the  enemy.  If  they  become  prevalent,  the  orderly  life 
of  the  community  is  at  an  end,  and  brigandage  and  law- 
lessness ensue. 

Unsuccessful  uprisings  in  occupied  territory.— Unsuccess- 
ful uprisings  of  the  populations  of  occupied  territory  should, 
\   ^       it  would  seem,  be  placed  in  the  same  category.    Success  jus- 
\ V  '    v  tines  such  uprisings  and  shows  that  the  alleged  occupation 

V  was  not  real;  but  the  miseries  likely  to  be  visited  on  all  the 

inhabitants  in  the  attempt  to  put  down  the  uprisings  make 
them  measures  to  be  shunned,  unless  the  chances  of  success 
are  good. 

Acts,  not  violations  of  the  law  of  war,  but  prohibited  by 
the  belligerent  because  injurious  to  him. — Besides  acts  of 
violence  which  are  contrary  to  the  laws  of  war  irrespective 


MARTIAL   LAW.  303 

of  the  military  regulations  of  the  occupant,  there  are  others 
which  may  be  prohibited  by  him  because  of  the  assistance 
they  render  the  enemy  or  because  of  their  danger  to  himself. 
Such  measures,  taken  for  his  own  security,  the  inhabitants 
are  under  no  duty  to  obey,  but  he  may  enforce  them  by 
such  penalties  as  are  not  contrary  to  the  laws  of  war.  Acts 
of  this  kind  are  spying  against  the  occupant,  giving  infor- 
mation to  the  legitimate  power  obtained  in  other  ways  than 
by  spying,  the  misguiding  of  the  occupant's  troops,  the  re- 
fusal to  deliver  up  arms  or  other  munitions  of  war,  leaving 
the  country  without  the  authority  of  the  occupant,  and  en- 
rolling in  the  armed  forces  of  the  legitimate  power. 

Delivery  up  of  arms. — During  the  Franco-German  War  the 
inhabitants  of  occupied  territory  were  required  to  deliver 
up  arms,  at  first  under  penalty  of  five  years'  imprisonment 
in  Germany,  or  an  equivalent  fine,  but  later  the  mere  pos- 
session of  arms  or  munitions,  without  special  circumstances 
to  overcome  the  presumption  of  a  hostile  purpose,  was  de- 
clared to  render  the  possessor  guilty  of  treason  against  the 
German  troops,  the  penalty  for  which  was  death.8 

German  action  to  prevent  the  inhabitants  of  territory  oc- 
cupied by  them  joining  the  French  army. — The  early  ef- 
forts of  the  German  authorities  to  stop  recruiting  were 
directed  merely  against  the  civl  functionaries  engaged  in 
it.  Later,  the  mayors  were  required  to  prepare  lists  of  those 
liable  to  serve  in  the  French  army,  and  the  families  of 
those  whose  absence  could  not  be  explained  were  fined  fifty 
francs  for  each  absent  individual  and  for  each  day  of  ab- 
sence. Still  later,  in  Alsace  and  Lorraine,  it  was  declared 
that  eight  days'  absence  from  home  without  the  previous 
permission  of  the  prefect  should  give  rise  to  the  legal  pre- 
sumption of  having  joined  the  French  army,  and  that  the 
offender  should  be  punished  by  the  confiscation  of  all  his 
goods  present  and  future  and  banishment  for  ten  years.9 
This  declaration,  however,  was  made  late  in  the  war,  and 
is  said  to  have  been  applied,  in  Alsace  at  least,  only  five 
times.10     Its  provisions  warrant  detailed  examination. 

No  right  to  punish  those  who  had  succeeded  in  doing  so. 
— The  right  to  punish  the  inhabitants  of  occupied  territory 

8  Bray,  Occupation  Militaire,  pp.   184-188. 

9  Ibid.,  pp.  282-287. 

1(>  Loening,   Revue   de   Droit   International.    5,   p.   85. 


304  MILITARY  OCCUPATION. 

for  leaving  the  territory  and  joining  the  forces  of  the  legit- 
imate power  is  undoubted,  but  it  was  with  great  force 
claimed  by  Rolin-Jaequemyns  that  the  principle  applied  to 
blockade  runners,  namely,  that  if  the  attempt  to  run  the 
blockade  is  successful,  the  offense  is  wiped  out,  should  be 
applied  here  also.11  The  inhabitants  of  the  occupied  ter- 
ritory are  under  no  duty  not  to  leave  the  occupied  territory 
and  join  the  forces  of  their  country,  but  rather  to  the  con- 
trary, and  if  they  are  willing  to  run  the  chances  of  being 
caught  in  the  act  and  suffering  therefor,  it  would  seem 
only  proper  that,  as  in  the  case  of  the  prisoner  of  war  who 
has  made  his  escape,  they  should  be  relieved  from  further 
liability  to  punishment.  The  right  to  punish  is  based  on 
the  power  to  prevent  the  doing  of  the  act,  and  if  that  power 
proves  to  be  lacking  the  right  to  punish  ceases.  This  being 
so,  the  punishment  of  the  families  of  those  who  have  es- 
caped is  especially  improper. 

Assistance  of  local  officials  should  not  be  required  to  pre- 
vent such  acts. — Another  criticism  of  the  proclamation  of 
the  German  authorities  is  that  they  went  beyond  their  legal 
powers  in  requiring  the  local  officials  to  make  lists  of  those 
liable  to  military  service  in  France.  They  had  a  right  to 
require  the  cooperation  of  the  local  authorities  in  sup- 
pressing offenses  against  the  laws  of  war  such  as  the  acts 
of  violence  which  have  heretofore  been  noticed,  but  when 
they  went  further  and  required  the  cooperation  of  the  offi- 
cials in  measures  hostile  to  their  own  goverment,  they  were 
doing  violence  to  the  most  laudable  feelings  of  patriotism, 
and  it  is  conceived  that  like  action  in  the  future  will  be 
prevented  by  the  spirit  if  not  letter  of  H  XLIV. 

Penalties  of  martial  law. — The  penalties  of  martial  law 
to  be  effective  must  be  prompt  and  severe.  Passions  run 
high,  respect  for  law  is  impaired  and  the  fate  of  the  nation, 
perhaps,  is  at  stake.  Example  should  be  made  of  offenders 
sufficient  to  deter  others  from  becoming  offenders  also.  But 
in  doing  this  it  is  extremely  necessary  to  take  care  that  the 
measures  do  not  defeat  the  very  ends  for  which  they  are 
designed.  The  confiscation  and  burning  of  property  is  a 
case  in  point.  There  may  be  times  when  such  measures  are 
justifiable  and  expedient,  but  they  are  very  rare.  If  the 
Franco-German  War  and  the  War  in  South  Africa  have 

"Revue  de  Droit  Inter.,  3,  pp.  317-318. 


MARTIAL   LAW.  305 

shown  anything,  they  have  shown  this.  Inflicted,  as  such 
punishments  generally  are,  because  the  offender  himself 
cannot  be  gotten  at,  they  strike  at  persons  often  entirely 
free  from  blame  and  turn  into  frenzied  apostles  of  hate  and 
revenge  those  who  have  been  driven  to  desperation  by  the 
loss  of  everything  they  possess. 

The  use  of  hostages  on  trains. — A  preventative  measure 
that  has  much  to  commend  it  when  properly  used  is  that 
of  placing  notable  citizens  on  trains  to  prevent  injury  to 
them.  As  a  protection  against  the  acts  of  belligerent  forces 
this  would,  of  course,  be  improper,  as  such  acts  would  be 
perfectly  lawful  acts  of  war;  but,  as  a  protection  against 
purely  lawless  acts  in  occupied  territory,  the  measure  is  one 
to  be  commended  for  the  slight  suffering  it  entails  and  for 
its  effectiveness. 

Importance  of  the  careful  study  of  the  penalties  of  mar- 
tial law. — At  the  Brussels  Conference  it  was  urged  that 
an  international  agreement  be  entered  into  fixing  penalties 
for  infractions  of  the  laws  of  war.  This  is  not  likely  to  be 
brought  about,  as  the  smaller  powers  have  shown  them- 
selves opposed  to  recognizing  the  legality  of  the  exercise 
of  penal  power  by  a  belligerent;  but  it  is  very  desirable 
that  a  more  careful  study  should  be  made  of  penalties  in 
order  that  a  maximum  of  prevention  be  secured  with  a  mini- 
mum of  suffering.  The  German  military  penal  code  of  June 
22,  1872,  was  a  step  in  the  right  direction.  One  of  its 
beneficent  provisions  was  the  requirement  of  trial  before 
punishment  in  every  case  dealt  with  by  it.12 

Innocent  parties  should  not  be  held  for  the  acts  of  others 
where  it  is  possible  to  punish  the  offender  himself. — In  every 
case  of  infraction  of  the  laws  of  war  the  utmost  effort  should 
be  made  to  confine  the  punishment  therefor  to  the  actual 
offender.  The  punishment  of  an  innocent  person  for  the 
offense  of  another  is  so  diametrically  opposed  to  every  prin- 
ciple of  justice  that  serious  indeed  must  be  the  occasion  that 
warrants  it. 

Reprisals. — The  most  noxious  form  of  this  injustice  is 
the  practice  of  reprisals.  At  times  states  are  so  swayed  by 
the  desire  of  success  and  the  passions  of  conflict  as  delib- 
erately to  violate  the  law  of  war  or  to  refuse  to  punish 
those  who  have  committed  such  violations.    This  in  no  way 

12  Revue  de  Droit  International,  5,  p.  83. 

20 


306  MILITARY  OCCUPATION. 

releases  the  other  belligerent  from  its  obligation  to  respect 
the  laws  of  war,  and  if  the  offense  is  slight,  it  is  better  to 
suffer  it  to  pass  than  run  the  risk  of  embittering  the  strug- 
gle ;  but  if  the  offense  is  not  slight,  it  may  be  thought  nec- 
essary to  prevent  its  recurrence  by  resorting  to  measures 
not  ordinarily  authorized  by  the  law  of  war.  Where  the 
offense  is  an  individual  act,  every  effort  should  first  be 
made  to  punish  the  offender,  and  in  case  that  is  not  possible 
to  secure  his  punishment  by  the  other  belligerent.  Where 
these  efforts  have  failed,  the  offended  belligerent  may,  if  he 
thinks  the  facts  warrant  it,  take  measures  of  a  nature  simi- 
lar to  the  acts  complained  of,  provided  they  be  of  a  less 
or  equal  degree.  Measures  of  a  greater  degree  of  severity 
will  almost  inevitably  lead  to  further  measures  of  retalia- 
tion, and  once  started  on  this  road  the  war  almost  certainly 
becomes  a  succession  of  outrages  and  recriminations. 

Article  of  the  Brussels  Declaration  on  the  continuance 
of  old  officials  in  office  during  the  occupation. — Article  XLIII 
was  followed  in  the  Brussels  Declaration  by  the  following 
article : 

"The  functionaries  and  officials  of  every  class  who,  at  the 
instance  of  the  occupier  consent  to  continue  to  perform  their 
duties,  shall  be  under  his  protection.  They  shall  not  be 
dismissed  or  be  liable  to  summary  punishment  unless  they 
fail  in  fulfilling  the  obligations  they  have  undertaken,  and 
shall  be  handed  over  to  justice  only  if  they  violate  those 
obligations  by  unfaithfulness." 

Position  of  the  Belgian  and  Dutch  delegates  at  The 
Hague. — This  clause  was  dropped  at  The  Hague  because  of 
the  opposition  of  the  delegates  from  Belgium  and  The 
Netherlands,  who  feared  it  might  be  held  to  imply  an  au- 
thorization to  the  officials  in  the  occupied  territory  to  enter 
the  service  of  the  enemy.13  This  would  be  especially  im- 
portant in  The  Netherlands,  where  those  in  charge  of  the 
dikes  have  a  special  technical  knowledge  which  would  be 
of  great  value  to  an  enemy,  if  placed  at  his  service.  It  is 
hard  to  see,  however,  that  any  such  implication  could  be 
made  from  this  provision,  and,  as  it  contains  important 
principles,  it  is  unfortunate  that  it  was  abandoned. 

With  territorial  authority  goes  authority  over  territorial 
officials. — Authority  to   govern  territory  must  include  au- 

13  See  the  report  of  M.  Ro^in. 


TERRITORIAL  OFFICIALS.  307 

thority  over  the  officials  through  whom  it  is  governed,  and 
as  the  general  authority  passes  to  the  occupant  for  the 
period  of  the  occupation,  so  the  authority  over  the  officials 
passes  to  him,  and  as  long  as  they  hold  their  positions  it 
is  their  duty  to  perform  the  functions  of  their  office  under 
the  direction  of  the  occupant  with  the  same  degree  of  faith- 
fulness as  under  their  own  government. 

Officials  may  resign. — But  it  is  not  necessary  for  them  to 
continue  to  hold  their  positions.  They  are  entitled  to  re- 
sign, and  are  under  obligation  to  do  so  if  they  feel  that  the 
continuance  of  their  functions  is  inconsistent  with  their  duty 
to  their  own  country,  or  if  it  is  forbidden  by  the  govern- 
ment of  their  own  country.  As  subjects  of  that  govern- 
ment, they  still  owe  obedience  to  its  commands,  although 
as  officials  they  are  no  longer  under  its  immediate  direction. 

Political  officials  necessarily  discontinue  their  functions. 
— Whether  continuance  in  office  is  permissible  depends 
largely  on  the  nature  of  the  office.  Continental  writers 
make  a  distinction  between  political  and  civil  officers,  con- 
fining the  former  to  the  representatives  of  the  central  gov- 
ernment in  the  various  districts  and  the  latter  to  the  repre- 
sentatives of  the  various  administrative  departments.  The 
actions  of  political  officers  are  largely  influenced  by  the 
political  party  which  happens  to  be  in  power,  and  they  are 
largely  entrusted  with  carrying  out  the  political  measures 
of  the  administration ;  while  the  civil  officers  are  concerned 
mainly  with  affairs  which  are  not  the  subjects  of  political 
controversy  and  continue  in  office  from  administration  to 
administration.  The  former  have  large  military  and  police 
powers,  and  it  would  obviously  be  equivalent  to  entering 
into  the  service  of  the  enemy  to  remain  in  such  office  under 
his  direction.  In  the  United  States  such  officers  would  in- 
clude governors  of  states  and  all  officials  under  them  ex- 
ercising any  military  authority.  Such  officers,  as  well  as 
those  directly  in  the  military,  naval  or  diplomatic  service, 
holding  office  in  the  occupied  territory,  are  under  obli- 
gations to  withdraw  from  their  positions  for  the  period  of 
the  occupation. 

Local  officials  under  a  duty  not  to. — On  the  other  hand, 
it  is  generally  considered  that  local  officials  are  under  an 
obligation  to  remain  at  their  posts.  Especially  in  the  large 
cities  the  functions  of  the  local  government  enter  so  vitally 


308  MILITARY  OCCUPATION. 

into  everyday  affairs  that  their  cessation  even  for  a  day 
would  seriously  cripple  the  life  of  the  community  and  re- 
sult in  crime  and  disorder.  It  is  in  the  interest  of  the  in- 
habitants  that  these  officials  remain,  so  that  in  no  sense  can 
it  be  said  that  they  enter  the  service  of  the  enemy.  It  is 
true  that  in  the  collection  of  contributions  and  requisitions 
they  are  of  aid  to  the  enemy,  but  the  aid  to  the  enemy  is 
slight  as  compared  with  the  suffering  and  loss  that  is  spared 
the  inhabitants. 

Tax  officials. — Many  of  the  reasons  for  local  officials  re- 
maining in  office  are  fully  applicable  to  tax  officials.  The 
local  officials  serve  as  a  buffer  between  the  occupying  army 
and  the  inhabitants  in  the  imposition  of  contributions  and 
requisitions,  and  it  is  possible  for  the  tax  officials  to  dis- 
charge a  similar  function  in  the  collection  of  the  regular 
taxes.  The  occupant  is  entitled  to  these,  but  if  the  tax  of- 
ficials leave  their  posts  it  is  impossible  for  him  to  collect 
them  from  sheer  ignorance  of  the  tax  laws,  if  nothing  else, 
so  that  he  will  be  compelled  to  collect  their  equivalent 
through  contributions,  whose  burden  is  sure  to  be  much 
heavier  than  that  of  the  regular  taxes.  Nevertheless,  as 
the  proceeds  of  the  taxes  go  to  the  occupant  for  his  own 
purposes,  after  payment  of  the  expenses  of  administration, 
tax  officials  are  likely  to  feel  that  by  remaining  in  office  they 
will  contribute  too  directly  to  filling  the  coffers  of  the  enemy 
and  thus  do  something  inconsistent  with  their  duty  to  their 
country.  Experience  has  shown  this  to  be  usually  the  case, 
since,  as  a  matter  of  fact,  tax  officials  appear  to  have  almost 
invariably  left  their  posts  on  occupation  by  the  enemy. 

Forest  officials. — Officials  in  charge  of  the  private  domains 
of  the  state,  such  as  the  forests,  are  in  somewhat  the  same 
position  as  the  tax  officials,  as  the  private  domains  are  us- 
ually sources  of  revenue ;  but  the  reasons  for  their  remain- 
ing at  their  posts  are  greater,  since,  no  matter  how  careful 
the  occupant  may  be  in  the  administration  of  the  forests, 
they  are  liable  to  suffer  some  damage  from  the  change  in 
administration. 

Postal,  railroad  and  telegraph  officials. — Postal  officials 
and  officials  in  the  railroad  or  telegraph  service,  and  it 
would  appear  to  be  immaterial  whether  these  are  under 
the  government  or  not,  are  almost  necessarily  called  upon 
to  discontinue  their  functions,  since,  if  they  remain,  the 


TERRITORIAL  OFFICIALS.  309 

chances  are  that  they  will  be  required  to  take  an  active 
part  in  transmitting  the  correspondence,  supplies  and  forces 
of  the  enemy. 

Those  in  charge  of  museums,  etc.,  should  remain. — Polit- 
ical, tax,  postal  and  railroad  officials  will  therefore  usually 
quit  their  positions,  while  local  officials  and  those  in  other 
departments  should  retain  theirs  unless  ordered  to  the  con- 
trary. Especially  is  this  true  of  those  in  charge  of  muse- 
ums, art  galleries,  palaces,  archives  and  scientific  works. 
Their  remaining  will  be  of  no  special  service  to  the  enemy, 
while  their  leaving  may  mean  the  destruction  of  the  treas- 
ures committed  to  their  care.  Wherever  the  courts  of  jus- 
tice can  readily  continue  their  functions,  it  is  their  duty 
to  do  so  also,  and  police  magistrates  and  officials  are  under 
special  obligations  to  remain  at  a  time  when  lawlessness 
is  likely  to  be  rampant. 

An  oath  of  fidelity  may  be  required  of  officials. — Func- 
tionaries who  remain  in  office  may  be  required  to  take  an 
oath  to  perform  their  duties  faithfully  and  to  refrain  from 
using  their  official  powers  in  hostility  to  the  occupant. 
Great  care  must  be  taken  in  the  wording  of  this  oath 
not  to  include  in  it  anything  inconsistent  with  the  allegi- 
ance of  the  officials  or  implying  that  they  have  entered  into 
the  service  of  the  enemy.  Even  when  no  oath  has  been 
given,  faithfulness  in  the  performance  of  duties  and  neu- 
trality of  official  conduct  are  a  condition  of  the  retention 
of  office.  It  is  to  be  noticed  that  in  the  Brussels  Article, 
failure  to  perform  duty  subjects  the  official  only  to  dis- 
ciplinary punishment  while  betrayal  of  trust  renders  him 
liable  to  punishment  under  the  penal  code. 

Occupant  must  not  demand  of  the  officials  who  remain 
duties  contrary  to  their  allegiance. — Over  those  who  re- 
main in  office  the  occupant  has  the  right  of  direction,  sus- 
pension and  dismissal.  He  may  make  such  orders  as  he 
deems  necessary  for  the  temporary  administration  of  the 
territory,  and  may  impose  new  duties  on  the  officials,  pro- 
vided such  duties  be  not  hostile  to  their  government.  Thus 
he  may  require  of  the  local  officials  the  collection  of  con- 
tributions and  requisitions,  and  the  punishment  of  offenses 
against  the  laws  of  war;  but  he  has  no  right  to  demand 
that  they  cooperate  in  measures  such  as  the  punishment 
of  those  leaving  the  occupied  territory  to  join  the  forces 


310  MILITARY  OCCUPATION. 

of  their  country,  since  acts  of  this  kind  are  not  contrary 
to  the  laws  of  war,  and  the  measures  taken  for  their  pre- 
vention are  measures  directly  hostile  to  the  country  to 
which  the  officials  still  owe  their  allegiance. 

H  XLIV.  A  belligerent  is  forbidden  to  force  the  inhabi- 
tants of  territory  occupied  by  it  to  furnish  information  about 
the  army  of  the  other  belligerent,  or  about  its  means  of  de- 
fence. 

Compelling  the  nationals  of  the  enemy  to  serve  as  guides. 
— Prior  to  the  adoption  of  this  article,  the  right  to  compel 
a  national  of  the  hostile  belligerent  to  serve  as  guide  was 
a  much  debated  one  in  juristic  circles,  but  it  was  one  that 
governments  seemed  loath  to  forego.  The  guide  was  in 
an  exceedingly  difficult  position,  but  it  was  generally  held 
that  if  he  acted  under  compulsion  he  was  not  guilty  of 
treason  to  his  own  country.  This  article  forbids  compelling 
inhabitants  to  act  as  guides  when  to  do  so  would  be  most 
dangerous  to  the  inhabitant's  country  and  consequently 
most  revolting  to  his  sense  of  patriotism.  By  a  liberal  con- 
struction it  may  be  held  to  forbid  every  compulsion  to 
act  as  guide  for  any  ignorance  of  the  country  on  the  part 
of  one  belligerent  may  be  considered  a  "means  of  defense" 
to  the  hostile  belligerent.  The  spirit  of  the  article  may 
also  be  held  to  forbid  requiring  of  local  officials  the  names 
of  the  inhabitants  of  occupied  territory  capable  of  service 
in  the  army  with  a  view  to  their  punishment  if  they  leave 
the  occupied  territory  to  enlist  in  their  country's  service. 

H  XLV.  It  is  forbidden  to  compel  the  inhabitants  of  occu- 
pied territory  to  swear  allegiance  to  the  hostile  Power. 

No  oath  of  allegiance  to  the  occupant  is  to  be  required. — 
As  we  have  seen,  this  does  not  prevent  the  requirement 
of  an  oath  of  fidelity  from  those  who  continue  in  office. 

H  XLVI.  Family  honour  and  rights,  the  lives  of  persons, 
and  private  property,  as  well  as  religious  convictions  and  prac- 
tice must  be  respected. 

Private  property  cannot  be  confiscated. 

Family  life  should  be  interfered  with  as  little  as  possible. 
— Family  honor  and  rights  are  not  considered  to  be  vio- 
lated by  requiring  the  quartering  or  feeding  of  troops;  nor 
by  the  search  for  requisitioned  articles,  where  forced  mili- 
tary execution  has  become  necessary;  nor  by  the  use  of 
a  house  for  military  operations,  where  such  use  is  neces- 


PILLAGE.  311 

sary.  But  such  incidents  are  among  the  most  annoying  of 
war  on  account  of  their  interference  with  family  life.  Ac- 
cordingly they  are  to  be  avoided,  if  possible,  and  where 
they  cannot  be  avoided  are  to  be  rendered  as  little  irksome 
as  possible. 

Churches  not  necessarily  free  from  right  of  requisition. 
— Liberty  of  public  worship  does  not  mean  that  churches 
or  other  ecclesiastical  establishments  are  necessarily  ex- 
empt from  the  right  of  requisition.  Gen.  Voigts-Rhetz  at 
the  Brussels  Conference,  declared  that  quartering  troops 
in  churches,  and  the  taking  of  what  may  be  necessary  for 
the  subsistence  of  the  army  from  ecclesiastical  establish- 
ments, could  neither  in  winter  or  in  case  of  scarcity  of  pro- 
visions, be  given  up.14 

H  XLVII.     Pillage  is  formally  forbidden. 

Absence  of  proprietors  not  to  be  considered  abandonment 
of  property. — Pillage  has  generally  been  forbidden  except 
where  towns  have  been  taken  by  assault,  ever  since  the 
practice  of  contributions  went  into  effect.  Dwellings  from 
which  the  inhabitants  are  absent  cannot  be  considered  as 
abandoned,  so  that  there  is  no  greater  right  against  the 
property  found  in  them  than  against  that  found  in  other 
dwellings.  The  owners,  however,  are  liable  to  suffer  more 
heavily  than  others,  since,  by  reason  of  their  absence,  the 
requisition  must  be  executed  militarily,  and  their  presence 
is  wanting  to  restrain  unlawful  acts  on  the  part  of  the 
soldiery. 

i-t  Protocol  18  of  the  Committee. 


312  MILITARY   OCCUPATION. 


CHAPTER  IX. 

MILITARY    OCCUPATION — RIGHTS    AND    DUTIES    AS    TO    PROPERTY. 

H  XLVIII.  If,  in  the  territory  occupied,  the  occupant  col- 
lects the  taxes,  dues  and  tolls  imposed  for  the  benefit  of  the 
State,  he  shall  do  so,  as  far  as  is  possible,  in  accordance  with 
the  rules  of  assessment  and  incidence  in  force,  and  shall  in  con- 
sequence be  bound  to  defray  the  expenses  of  the  administration 
of  the  occupied  territory  to  the  same  extent  as  the  legitimate 
Government  was  so  bound. 

The  occupant  has  no  right  to  local  and  provincial  taxes. 
— The  limitation  that  only  those  taxes  may  be  collected  by 
the  occupant  which  are  for  the  benefit  of  the  State  was 
suggested  by  Count  Lamza,  the  Italian  delegate,  in  order  to 
exempt  local  and  provincial  taxes  from  the  power  of  the 
occupant.1  This  exemption  is  based  on  the  assumption  that 
military  affairs  are  entirely  the  concern  of  the  central  gov- 
ernment, and  that  accordingly  only  those  taxes  which  would 
have  gone  to  the  central  government  can  be  collected  by 
the  occupant.  In  federal  governments  like  the  United 
States,  where  the  States  make  large  military  expenditures, 
it  is  probable  that  the  State  taxes  would  be  assimilated  to 
taxes  due  the  central  government  rather  than  to  local  and 
provincial  taxes. 

Rules  of  incidence  and  collection  of  taxes  in  force,  to  be 
followed,  if  possible. — The  rule  that  the  existing  tax  laws 
shall  be  followed  as  far  as  possible  in  the  assessment  and 
collection  of  taxes  is  an  instance  of  the  more  general  rule 
that  the  laws  in  force  in  the  country  shall  be  respected 
unless  the  occupant  is  absolutely  prevented  from  doing  so. 
It  is  the  duty  which  he  is  under  to  provide  for  the  adminis- 
tration of  the  territory  that  entitles  him  to  the  taxes.  Other- 
wise he  would  be  entitled  only  to  the  surplus  after  the  ad- 
ministration had  been  provided  for. 

This  generally  prevented  by  withdrawal  of  tax  officials. — 
As  has  heretofore  been  pointed  out,  however,  the  desertion 
of  their  posts  by  the  tax  officials  is  likely  to  render  the  ex- 

i  Protocol  10  of  the  Committee. 


TAXES.  313 

isting  laws  unenforceable  and  in  that  case  resort  will  be 
had  to  contributions,  which  can  be  only  a  rough  equivalent 
to  the  taxes. 

Practice  in  the  Franco-German  War. — Such  was  the  course 
of  events  in  the  Franco-German  War.  At  first  the  Germans 
attempted  to  collect  the  taxes  according  to  the  French  Law, 
but  this  proved  to  be  impossible  even  in  the  case  of  the  in- 
direct tax,  which  they  sometimes  approximated  by  taking 
as  a  basis  the  indirect  taxes  for  the  two  preceding  years, 
sometimes  by  exacting  from  100  percent  to  200  percent  of 
the  direct  tax,  and  in  other  cases  by  exacting  a  lump  sum 
of  from  twenty-five  to  fifty  francs  per  head.2 

Methods  of  enforcing  collection. — In  few  cases,  if  any, 
were  the  taxes  levied  directly  on  individuals.  The  mayor 
of  the  chief  city  of  a  department,  arrondissement,  or  can- 
ton, was  required  to  reapportion  the  tax  among  the  com- 
munes and  inhabitants.  An  ordinance  of  the  Governor-Gen- 
eral of  Kheims  of  February  5,  is  typical  of  the  means  used 
to  secure  the  prompt  payment  of  the  tax.  Dilatory  com- 
munes were  threatened  with  a  fine  of  5  percent  of  the 
amount  due  for  each  day  of  delay,  and  told  that  at  the  end 
of  eight  days  troops  would  be  quartered  on  them,  which 
they  would  be  required  to  lodge  and  nourish  without  pay, 
besides  paying  six  francs  daily  to  each  officer  and  two  francs 
to  each  soldier,  till  the  amount  due  had  been  entirely  dis- 
charged. Prominent  citizens  had  already  been  taken  as 
hostages  for  the  payment  of  these  debts,  and  six  days  later 
the  Governor-General  issued  another  ordinance  warning  the 
inhabitants  that,  if  the  taxes  were  not  paid  in  eight  days, 
the  hostages  would  be  sent  to  Germany  and  further  measures 
taken  against  the  dilatory  communes.3 

Importance  of  contributions  imposed  in  lieu  of  taxes. — 
The  importance  of  these  contributions  imposed  in  lieu  of 
taxes  is  shown  by  the  fact  that  comparative  estimates  of 
those  imposed  during  the  Franco-German  War,  placed  them 
at  from  49  to  62  millions  of  francs,  as  against  from  30  to 
39  millions  of  francs  exacted  as  war  contributions  and  fines.4 

Credit  given  by  the  French  Government  for  payment  of 
taxes  to  German  authorities. — After  peace  was  established, 

2  Bray,  p.  300. 

3  Bray,  p.  301. 

4  Bray,  p.  302,  Feraud-Giraud,  Sec.  32. 


314  MILITARY   OCCUPATION. 

the  French  Government  declared  that  communes  which  had 
been  compelled  to  turn  over  money  in  their  treasuries  to 
the  German  authorities  should  be  reimbursed,  and  that  in- 
dividuals who  could  show  proper  evidence  of  having  been 
compelled  to  pay  taxes  to  the  Germans  should  be  allowed 
to  deduct  the  amount  paid  from  the  contributions  for  1870- 
1871,  a  reduction  being  allowed  of  the  amount  of  the  direct 
tax,  to  the  extent  actually  paid,  and  of  double  the  amount 
of  the  direct  tax  on  account  of  what  the  Germans  had  ex- 
acted as  the  equivalent  of  the  indirect  tax.  Everything  be- 
yond these  amounts  was  to  be  considered  as  war  contribu- 
tions and  ruled  by  different  principles.5 

H  XLIX.  If,  in  addition  to  the  taxes  mentioned  in  the  above 
Article,  the  occupant  levies  other  money  contributions  in  the 
occupied  territory,  this  shall  only  be  for  the  needs  of  the  army 
or  of  the  administration  of  the  territory  in  question. 

War  contributions. — Contributions  levied  in  lieu  of  taxes 
may  not  be  adequate  for  the  needs  of  administration,  and 
in  such  a  case  war  contributions  proper  may  be  imposed  to 
make  up  what  is  lacking.  The  principal  occasion  for  war 
contributions,  however,  will  always  be,  the  needs  of  the 
army.  How  these  are  to  be  met  without  imposing  too  great 
a  burden  on  the  inhabitants  was  the  subject  of  earnest  de- 
bate at  Brussels  and  The  Hague. 

Limitation  of  War  contributions  in  original  Russian  Pro- 
ject at  Brussels. — The  original  Russian  Project  at  Brussels 
was  in  line  with  the  general  principle  eventually  laid  down 
in  Article  XLIII  that  the  laws  in  force  in  the  occupied  ter- 
ritory shall  be  respected  by  the  occupant.  It  provided  that 
the  army  of  occupation  should  have  the  same  rights  in  levy- 
ing war  contributions  as  the  army  of  the  country  whose 
territory  was  occupied,  would  have  had.  It  was  objected 
that  there  might  be  no  laws  providing  for  contributions  and 
requisitions  in  the  country  whose  territory  was  occupied; 
or  that  the  country  might  be  one  liable  to  invasion  and 
have  laws  that  would  render  the  right  of  the  occupant,  to 
contributions  nugatory;  and  finally,  that  this  rule  left  out 
of  consideration  the  needs  of  the  army  on  which  the  right 
was  chiefly  based. 

Proposition  to  confine  them  to  what  the  occupying  army 
would  have  a  right  to  in  its  own  country. — On  the  other 

o  Bray,  pp.  302-303. 


CONTRIBUTIONS.  315 

hand,  it  was  proposed  that  the  laws  in  force  in  the  country 
of  the  occupying  belligerent  should  be  the  ones  to  be  ap- 
plied in  the  occupied  territory,  but  here  again,  it  was  ar- 
gued that  there  might  be  no  such  laws;  that  constitutional 
restrictions  might  prevent  them  from  being  enacted;  that 
a  country  likely  to  take  the  offensive  might  enact  a  law  of 
the  most  extreme  character,  and  finally  that  the  logical 
basis  of  war  contributions,  the  needs  of  the  army  would  be 
ignored  by  this  rule  also.  The  truth  was  that  both  these 
propositions  were  artificial  and  impracticable.6 

Attempt  to  limit  them  by  requiring  the  receipts  to  be  in- 
demnities.— A  further  attempt  to  limit  contributions  was 
involved  in  the  proposal  to  require  that  the  receipt  given 
for  them  should  be  in  the  nature  of  a  promise  of  repayment. 
This  proposal  was  rejected,  and  the  only  limitation  finally 
adopted  was  that  the  contributions  should  be  imposed  either 
for  the  needs  of  the  army  or  the  administration  of  the  ter- 
ritory. While  this  may  seem  to  be  almost  no  restriction, 
since  in  modern  wars  contributions  have  not  nearly  reached 
this  limit,  still  it  prevents  contributions  from  being  made 
use  of  to  enrich  the  coffers  of  the  successful  belligerent  a 
practice  familiar  in  ancient  history  and  not  unknown  in 
more  modern  times. 

Advantages  of  paying  for  provisions. — The  desirableness 
of  buying  provisions  in  the  open  market  at  a  fair  price  or 
of  paying  for  them  when  requisitioned  is  evident  at  a 
glance.  Concealment  of  property  is  largely  avoided,  pro- 
visions are  secured  with  much  less  friction,  business  condi- 
tions are  not  so  violently  disturbed  and  the  inhabitants  are 
not  left  penniless.  But  armies  cannot  carry  sufficient  cash 
with  them  to  pay  for  what  they  need,  so  that,  if  they  pay 
at  all,  they  must  very  often  raise  the  money  by  contribu- 
tions. The  burden  of  the  money  payment  is  likely  to  be 
distributed  over  a  wide  area  or  fall  on  those  best  able  to 
stand  it,  while  the  burden  of  requisitions  in  kind  is  liable 
to  fall  on  agricultural  communities  who  have  what  is  direct- 
ly needed  for  the  wants  of  the  army,  but  are  much  less  able 
to  stand  the  burden  of  supporting  the  army  than  their  rich 
neighbours  in  the  cities. 

Advantages  of  contributions. — As  General  Voigts-Rhetz 
said  at  Brussels:     "An  army  arrives  at  a  rich  town  and 

e  Protocols  15,  16  of  the  Committee. 


316  MILITARY   OCCUPATION. 

demands  a  certain  number  of  oxen  for  its  subsistence.  The 
town  replies  that  it  has  none.  The  army  would  in  that  case 
be  compelled  to  apply  to  villages  which  are  frequently  poor, 
where  it  would  seize  what  it  is  in  want  of.  This  would  be 
a  flagrant  injustice.  The  poor  would  pay  for  the  rich. 
There  is,  therefore,  no  other  expedient  but  to  admit  an 
equivalent  in  cash.  This  is  likewise  the  mode  which  the  in- 
habitants prefer.  Moreover,  it  cannot  be  admitted  that  a 
town  which  is  unable  to  pay  in  kind  shall  be  exempted 
from  paying  in  money."  And  again:  ''An  army  arrives 
at  night  and  is  to  leave  the  next  day.  It  must  be  fed ;  the 
town  cannot  do  this;  the  occupier,  with  the  money  which 
he  levies  on  the  spot,  will  therefore  go  into  the  neighboring 
country  and  procure  what  it  is  in  want  of  by  means  of  the 
money  supplied  by  the  town."7 

Contributions  of  far  less  importance  than  Requisitions. — 
In  these  cases,  contributions  certainly  appear  to  be  an  al- 
leviation of,  rather  than  an  addition  to,  the  burdens  of  war. 
But  after  all,  their  importance  is  slight  as  compared  with 
that  of  requisitions.  It  has  been  estimated  that  during  the 
Franco-German  War,  the  war  contributions,  outside  of  the 
city  of  Paris  amounted  to  thirty-nine  millions  of  francs, 
while  the  requisitions  reached  the  sum  of  three  hundred 
and  twenty-seven  millions.8 

H  L.  No  general  penalty,  pecuniary  or  otherwise,  shall  be 
inflicted  upon  the  population  on  account  of  the  acts  of  indi- 
viduals for  which  they  cannot  be  regarded  as  jointly  and  sever- 
ally responsible. 

No  general  penalty  for  acts  for  which  a  community  can- 
not be  regarded  as  collectively  responsible. — The  principle 
of  this  article  has  been  observed  in  the  past  more  in  its  let- 
ter than  in  its  spirit.  Almost  invariably,  when  communities 
have  been  held  liable  for  acts  committed  within  their 
bounds,  it  has  been  upon  the  ground  that  they  could  and 
should  have  prevented  them  and  were  thus  implicated  in 
their  commission.  Both  these  elements  should  enter  into  an 
act  before  the  community  is  held  liable  for  it.  If  the  acts 
are  individual  acts,  necessitating  little  cooperation  with  the 
rest  of  the  community,  the  laying  down  of  any  presumption 

i  Protocol  16  of  the  Committee. 
s  Feraud-Giraud,  Sec.  32. 


FINES.  317 

of  collective  responsibility  would  appear  to  be  directly  op- 
posed to  the  spirit  of  this  article. 

Aid  of  community  may  be  required  in  preventing  and 
punishing-  acts  of  violence  against  the  law  of  war. — Even 
where  a  community  may  be  able  to  prevent  an  act,  it  should 
not  be  held  responsible  for  its  commission,  unless  it  is  under 
a  duty  to  prevent  it.  Acts  of  violence  in  occupied  territory 
are  likely  to  be  of  such  a  public  nature  that  the  intention 
to  commit  them  may  be  well  known  to  the  community  at 
large,  and,  if  they  are  contrary  to  the  laws  of  war,  a  bel- 
ligerent is  justified  in  requiring  the  aid  of  the  community 
in  suppressing  them  and  even  in  holding  the  community  re- 
sponsible if  they  are  not  prevented.  But  this  liability 
should  not  be  extended  to  acts  not  themselves  contrary  to 
the  laws  of  war,  but  which  the  occupant  opposes  for  his 
own  safety  and  in  order  to  prevent  aid  from  reaching  the 
enemy,  such  as  spying,  leaving  the  occupied  territory  to 
join  the  national  army,  and  refusing  to  give  up  arms. 

The  innocent  should  not  suffer  for  the  guilty. — As  in  the 
case  of  reprisals,  every  effort  should  first  be  made  to  punish 
the  actual  offenders.  Collective  responsibility  is  so  easy  of 
enforcement  that  there  is  the  temptation  to  resort  to  it  on 
the  least  occasion ;  but  the  principle  that  the  innocent  should 
not  suffer  for  the  guilty  applies  here  as  well  as  in  the  case 
of  reprisals  so  that  only  as  a  last  resort  should  collective 
responsibility  be  enforced.  The  same  care  in  placing  such 
responsibility  should  be  taken  as  is  taken  in  determining 
and  enforcing  the  liability  of  the  individual.  An  investiga- 
tion in  the  nature  of  a  judicial  proceeding  is  the  least  that 
can  be  demanded. 

Fines. — The  article  under  consideration  appears  to  be 
somewhat  out  of  place  in  the  scheme  of  the  convention,  but 
it  was  probably  inserted  here  because  war  contributions  and 
fines  are  both  money  exactions,  and  because  collective  re- 
sponsibility is  usually  exacted  in  the  form  of  fines. 

H  LI.  No  contribution  shall  be  collected  except  under  a 
written  order,  and  on  the  responsibility  of  a  Commander-in- 
chief. 

The  collection  of  the  said  contribution  shall  only  be  effected 
as  far  as  possible  in  accordance  with  the  rules  of  assessment  and 
incidence  of  the  taxes  in  force. 


318  MILITARY   OCCUPATION. 

For  every  contribution  a  receipt  shall  be  given  to  the  con- 
tributors. 

Receipts  for  Contributions  need  not  have  the  character  of 
indemnities. — These  receipts  need  not  have  the  character  of 
promises  to  pay.  As  has  been  seen,  attempts  to  give  them 
that  character,  both  at  Brussels  and  at  The  Hague,  failed, 
although  made  by  many  of  the  most  able  and  influential  men 
in  the  conferences.  It  was  earnestly  desired  to  limit  the 
levying  of  contributions  by  making  the  receipts  for  them 
indemnities,  thus  avoiding  the  impositions  of  the  burdens 
of  the  war  on  individuals;  but  the  general  feeling  at  the 
Conferences  seems  to  have  been  that  the  reimbursement  of 
the  individual  is  a  matter  of  national  rather  than  of  inter- 
national concern.9  There  was  no  feeling  that  the  individual 
ought  to  bear  the  whole  burden  of  the  contribution  himself ; 
but  it  was  felt  that  the  reimbursement  could  best  be  man- 
aged by  each  government  within  its  own  territory. 

H  LII.  Requisitions  in  hind  and  services  shall  not  be  de- 
manded from  municipalities  or  inhabitants  except  for  the  needs 
of  the  army  of  occupation.  They  shall  be  in  proportion  to  the 
resources  of  the  country,  and  of  such  a  nature  as  not  to  in- 
volve the  inhabitants  in  the  obligation  of  taking  part  in  mili- 
tary operations  against  their  country. 

Such  requisitions  and  services  shall  only  be  demanded  on  the 
authority  of  the  commander  in  the  locality  occupied. 

Contributions  in  hind  shall  as  far  as  possible  be  paid  for  in 
cash;  if  not,  a  receipt  shall  be  given  and  the  paijment  of  the 
amount  d.ue  shall  be  made  as  soon  as  possible. 

Regulations  as  to  the  orders  authorizing  Requisitions. — 
It  will  be  noticed  that  while  contributions  can  only  be  levied 
by  the  commander-in-chief  and  on  written  order,  requisi- 
tions may  be  demanded  by  the  commander  in  the  locality 
occupied  and  orally.  Requisitions  are  often  made  of  prop- 
erty of  little  value,  such  as  forage  for  the  horses,  for  which 
it  would  be  incongruous  to  require  the  order  of  the  com- 
mander-in-chief or  even  a  written  order ;  and  often  the  need 
for  such  supplies  is  so  pressing  that  either  would  be  imprac- 
ticable. "Where  it  is  possible,  however,  it  is  desirable  that 
the  levying  of  requisitions  should  also  be  on  the  written  au- 
thority of  the  commander-in-chief.  Not  only  is  this  a  great 
safeguard  against  the  abuse  of  authority,  but  the  written 

»  Supra,  p.  107. 


REQUISITION'S.  319 

order  also  avoids  misunderstanding  on  the  part  of  those 
who  execute  it.  Ferrand  says  that  such  orders  should  be 
"written  and  signed  mentioning  clearly  the  nature  and 
quantity  of  the  payments  to  be  furnished,  the  length  of  the 
service  and  the  day,  the  hour  and  the  place  of  delivery."10 

Expression  of  the  desirability  of  paying  for  requisitions 
in  cash. — The  last  paragraph  is  the  work  of  the  two  Peace 
Conferences.  The  Brussels  Declaration  expressed  no  pref- 
erence for  cash  payments.  The  part  the  second  Conference 
played  was  in  giving  the  receipts  somewhat  the  character 
of  indemnities  by  providing  that  "the  payment  of  the 
amount  due  shall  be  made  as  soon  as  possible."  The  im- 
plication intended  by  those  who  would  free  the  individual 
as  far  as  possible  from  the  burden  of  the  war  probably  is 
that  the  amount  is  due  from  the  belligerent  giving  the  re- 
ceipt, but  the  fact  that  the  provision  is  not  worded  more 
definitely  than  it  is  shows  that  the  Governments  were  un- 
willing to  agree  to  any  absolute  obligation  in  this  regard 
and  it  is  likely  that  whether  the  amounts  indicated  in  these 
receipts  are  paid  or  not  will  be  left  to  the  Treaty  of  Peace 
or  to  the  action  of  the  country  in  which  the  receiver  was 
domiciled,  as  in  the  case  of  receipts  given  for  war  contribu- 
tions. 

The  French  Manual  enjoins  that  the  receipt  shall  contain 
words  and  figures  which  will  make  it  possible  to  verify  its 
authenticity  afterwards  and  to  establish  the  value  of  the 
things  exacted;  that  the  officer  who  gives  the  receipt  shall 
write  the  text  legibly,  note  specifically  the  essential  ele- 
ments which  determine  the  market  value  of  the  articles, 
give  the  date,  indicate  in  connection  with  his  signature  his 
grade  and  the  corps  to  which  he  belongs,  and  note,  if  there 
be  occasion  for  it,  that  he  acts  by  delegation  of  superior  au- 
thority.11 

Services  must  not  involve  military  service  under  the  ene- 
my.— Services  which  cannot  be  required,  because  they  in- 
volve participation  in  the  operations  of  war  against  one's 
country,  have  already  been  discussed  under  H  VI,  XXITI 
and  XLIV. 

Requisitions  must  be  in  proportion  to  the  resources  of  the 
country. — The  limitation  that  the  requisitions  be  in  propor- 

10  Fefrand,  Requisitions  Militaires,  p.  96. 
ii  French  Manual,  p.  127. 


320  MILITARY   OCCUPATION. 

tion  to  the  resources  of  the  country  is  important,  as  suggest- 
ing to  the  mind  of  the  commander  that  account  must  be 
taken  of  requisitions  previously  made  on  the  community, 
and  a  careful  investigation  made  of  the  resources  of  the 
country,  so  that  the  burden  of  the  requisitions  may  be  dis- 
tributed as  equitably  as  possible. 

The  personal  services  that  may  be  required. — Personal 
services  that  may  be  required  are  those  of  clergymen,  phy- 
sicians, surgeons,  pharmacists,  etc. ;  of  workmen,  such  as 
drivers,  farriers,  smiths,  carpenters,  bakers,  butchers,  etc. ; 
and  finally  of  laborers,  provided  always  that  they  are  for 
the  needs  of  the  army  and  do  not  amount  to  participating 
in  military  operations  against  their  country.12  Others  likely 
to  have  their  services  requisitioned  are  railroad,  telegraph 
and  postal  employees.  Mayors  and  other  notables  may  be 
required  to  aid  in  levying  contributions  and  requisitions  in 
communicating  official  decrees  to  the  inhabitants  and  in  per- 
forming other  functions  of  a  similar  nature  not  inconsistent 
with  loyalty  to  their  own  country.  It  would  seem,  however, 
that  requisitions  cannot  be  levied  to  aid  in  carrying  on  the 
administration  of  the  occupied  territory,  as  contributions 
can,  as  they  are  limited  strictly  to  the  needs  of  the  army,  so 
that  the  occupant  is  not  authorized  to  compel  postal  em- 
ployees to  continue  their  functions  for  the  sake  of  giving 
a  better  administration,  but  can  do  so  only  for  the  needs  of 
his  own  army. 

Articles  that  may  be  requisitioned. — Requisitions  in  kind 
extend  to  all  objects  incidental  to  the  shelter  of  troops,  to 
the  subsistence  of  the  army  in  campaign,  to  transportation 
and  communication,  to  the  care  of  the  sick  and  wounded, 
to  objects  of  clothing  and  camp  equipment,  and  finally  to 
all  materials,  tools,  apparatus,  etc.,  suitable  for  the  use  of 
the  army.13 

Sheltering  of  troops. — Sheltering  of  troops  may  be  by 
cantonment,  by  camp  or  by  bivouac.  Bivouacing  involves 
the  use  of  improvised  shelter  or  small  tents,  or  even  a  stay 
in  the  open  air.  It  is  inevitable  in  the  presence  of  an  enemy 
or  when  the  march  of  troop  is  concentrated,  but  is  extreme- 
ly unsanitary  and  is  never  resorted  to  except  from  neces- 

12  Ferrand,  p.  32. 
is  Ferrand,  p.  33. 


REQUISITIONS.  321 

sity.14  .  Camps  are  places  where  troops  live  for  a  consider- 
able time  in  large  tents  or  barracks.  Camping  is  the  only 
alternative  to  quartering,  for  the  purpose  of  sheltering 
troops  for  any  considerable  period,  so  that  each  varies  in- 
versely as  the  other.  As  French  military  writers  seem  to 
think  camps  mainly  of  use  in  special  cases,  such  as  invest- 
ments,15 quartering  is  likely  to  be  largely  used  by  the 
French  army  and  the  practice  seems  to  be  the  same  gener- 
ally on  the  Continent.  But  in  England  and  the  United 
States  there  has  always  been  a  strong  feeling  against  quar- 
tering on  account  of  its  interference  with  family  life,  so 
that  it  will  probably  never  be  so  general  in  American  as  it 
is  in  Continental  armies.  Its  advantages  are  its  restfulness, 
its  healthfulness  and  the  small  degree  of  preparation  it  re- 
quires on  the  part  of  the  troops. 

Quartering  of  troops  in  churches,  etc. — At  the  Brussels 
Conference,  Baron  Lambermont  tried  to  have  the  right  to 
quarter  troops  in  ecclesiastical,  charitable  and  educational 
establishments  limited  to  the  sick  and  wounded,  but  General 
Voigts-Rhetz  would  not  entertain  the  proposal,  at  least  as 
applied  to  churches;  and  it  is  probable  that  in  pressing 
cases  any  of  these  institutions  may  be  so  used.  The  quar- 
tering of  troops  in  museums,  libraries  and  art  galleries 
would  seem  to  be  absolutely  forbidden.16  The  inhabitants 
can  be  required  to  keep  the  streets  lighted,  to  keep  lights 
in  their  windows  and  to  keep  their  doors  open.  Soldiers 
have  a  right  to  light  in  their  quarters,  and  if  circumstances 
warrant  it  to  fire  and  straw.17 

Requisition  of  food  supplies. — Requisitions  of  food  sup- 
plies are  important  even  where  an  army  subsists  mainly  oh 
its  convoys ;  and  where  the  army  is  engaged  in  rapid  strate- 
gical operations,  they  are  its  mainstay.  AVhere  purchases 
in  the  open  market  are  out  of  the  question,  requisitions 
must  be  resorted  to.  These  take  two  forms — that  of  re- 
quiring nourishment  from  the  inhabitants  with  whom  the 
soldiers  are  quartered,  and  that  of  requiring  the  supplies 
themselves.  The  former  method  does  not  exact  any  pre- 
vious preparation,  gives  the  soldiers  a  varied  food  without 

I*  Ferrand,  p.  39. 

is /bid.,  p.  40. 

ic  Protocol  18  of  the  Committee. 

it  Ferrand,  p.  36. 

21 


322  MILITARY   OCCUPATION. 

delay,  causes  less  fatigue  to  the  soldier,  permits  convoys  of 
provisions  to  march  separately,  utilizes  best  the  provisions 
of  all  sorts  in  the  country,  and  is  more  economical  since  it 
gives  rise  to  less  waste  and  does  away,  to  a  great  degree, 
with  the  necessity  for  transports.18  On  the  other  hand,  as 
already  mentioned,  there  is  a  pronounced  sentiment  against 
it  both  in  the  United  States  and  Great  Britain,  on  account 
of  its  interference  with  family  life. 

Local  conditions. — In  fixing  requisitions,  it  is  necessary  to 
have  regard  to  local  conditions,  to  the  manner  of  living, 
locality  itself,  etc.  Thus,  in  industrial  centers  and  the  great 
cities,  it  will  be  necessary  to  take  into  account  the  work- 
ing population.  They  do  not  produce  food  products,  they 
do  not  have  provisions  with  them  as  country  people  have, 
and  they  often  lack  the  credit  and  money  to  procure  pro- 
visions in  advance  of  their  needs.19 

Regulations  as  to  boarding. — "Where  the  requisition  takes 
the  form  of  boarding,  the  inhabitants  ought  to  furnish  the 
regulation  ration  or  its  equivalent ;  and,  to  avoid  difficulties, 
the  commandant  ordering  the  requisition  should  determine 
the  composition  of  the  repast  to  be  furnished.  When  the 
nourishment  furnished  is  insufficient,  the  soldiers  should  not 
take  matters  into  their  own  hands,  but  should  complain  to 
their  officers  who,  if  unable  to  obtain  satisfaction  from  the 
offending  parties,  will  take  the  matter  to  the  commandant, 
who  will  see  that  the  municipal  authorities  live  up  to  the 
obligation  imposed  upon  them  of  providing  suitable  quar- 
ters.20 Provisions  for  the  horses  may  be  required  in  the 
same  way  as  for  the  men. 

Importance  of  requisitions. — The  possibilities  of  the  abuse 
of  this  system  are  evidently  very  great;  but  on  the  other 
hand,  it  was  used  by  Napoleon  and  by  the  Germans  in  186G 
and  1870  with  great  success,  and  Ferrand,  following  Bera- 
tier,  says  that  if  the  exaggerated  fear  of  causing  too  heavy 
a  burden  on  the  populations  should  cause  this  manner  of 
feeding  an  army  to  be  put  aside,  or  if  the  temperament  of 
the  army  should  not  be  strong  enough  to  stand  the  test 
of  discipline  which  this  method  makes  necessary,  it  would 

is  Ferrand,  p.  47. 

19  Ferrancl,  p.  48. 

20  Ferrand,  pp.  52-54. 


REQUISITIONS. 


323 


be  better  to  renounce  war  altogether;  an  adversary  better 
advised  would  have  from  this  alone  a  marked  superiority.21 

Under  the  head  of  requisitions  of  supplies,  are  classed 
coal  or  other  combustibles,  provisions  of  all  kinds,  and  even 
wine  and  tobacco,  which,  as  the  men  may  be  accustomed  to 
them,  are  likely  to  add  to  their  comfort  and  efficiency.22  In 
utilizing  these  supplies,  the  mills,  ovens,  etc.,  of  the  locality 
may  be  made  use  of. 

Land  transportation. — Land  transportation  other  than  by 
railroads  is  of  great  importance  in  the  conveyance  of  sup- 
plies and  of  the  sick  and  wounded.  For  this  purpose  all 
sorts  of  carts,  wagons,  etc.,  and  their  drivers,  are  needed, 
but  it  is  the  use  of  the  conveyances  that  is  requisitioned 
and  not  the  conveyances  themselves.  The  period  for  which 
they  are  taken  should  be  short,  and  the  return  sure,  as  they 
often  represent  all  their  owner's  working  capital.23  The 
right  to  the  use  of  railroads  and  other  like  means  of  com- 
munication is  treated  in  H  LIU,  and  so  will  not  be  dis- 
cussed here. 

Military  execution. — A  requisition  is  usually  addressed 
to  the  authorities  of  the  community  requisitioned,  or  in  de- 
fault of  such  authorities  to  notables  of  the  district,  who  are 
held  liable  for  its  apportionment  among  the  inhabitants, 
since  they  are  in  a  better  position  than  the  officers  of  the 
hostile  army  to  apportion  it  equitably.  In  cases  where  those 
to  whom  the  requisition  would  ordinarily  be  addressed  can- 
not be  found  or  refuse  to  act,  or  where  there  is  great  ur- 
gency for  the  requisition  at  a  point  so  far  distant  that  the 
municipality  can  not  be  regularly  notified,  the  occupant  may 
be  compelled  to  resort  to  military  execution  and  take  the 
articles  desired  himself,  and  if  necessary,  by  force.  Mili- 
tary execution  involves  domiciliary  visits  and  is  apt  to  be 
marked  by  the  infliction  of  severe  penalties  as  the  occasion 
for  it  is  perhaps  most  often  the  refusal  of  the  inhabitants 
to  furnish  the  supplies  demanded.  The  resort  to  it  is  there- 
fore even  more  to  be  shunned  by  the  inhabitants  than  by 
the  army.24 

II  LIII.    An  army  of  occupation  can  only  take  possession  of 

21  Ferrand,  p.  54. 

22  Ferrand,   pp.   55-56. 

23  Ferrand,  pp.  58-63. 

24  Ferrand,  pp.  95-102. 


324  MILITARY  OCCUPATION". 

cash,  funds,  and  realizable  securities  which  are  strictly  the  prop- 
erty of  the  State,  depots  of  arms,  means  of  transport,  stores  and 
supplies,  and,  generally,  all  movable  property  belonging  to  the 
Slate  which  may  be  used  for  military  operations. 

All  appliances,  whether  on  land,  at  sea,  or  in  the  air,  adapted 
for  the  transmission  of  news,  or  for  the  transport  of  persons  or 
things,  exclusive  of  cases  governed  by  naval  law,  depots  of  arms, 
and,  generally,  all  hinds  of  ammunition  of  war,  may  be  seized, 
even  if  they  belong  to  private  individuals,  but  must  be  restored 
and  compensation  fixed  when  peace  is  made. 

Rights  over  movable  public  property  of  enemy. — The  first 
paragraph  deals  with  rights  over  the  movable  public  prop- 
erty of  the  enemy.  The  right  to  all  such  property  useful  in 
war  springs  (1)  from  the  right  to  prevent  its  use  by  the 
enemy,  and  (2)  from  the  right  of  the  occupant  to  indemnify 
himself  for  the  expenses  of  the  war.  The  occupant  does 
not  become  the  owner  of  the  property  by  the  fact  of  suc- 
ceeding temporarily  to  the  authority  of  the  legitimate  pow- 
er. Title  remains  where  it  was  before  the  occupation,  until 
the  occupant  takes  advantage  of  his  position  and  appro- 
priates the  property  to  himself.  In  the  case  of  tangible 
personal  property,  this  appropriation  is  by  means  of  physi- 
cal seizure,  and  some  writers  have  endeavored  to  make  this 
a  general  rule,  so  that  without  physical  seizure  there  can 
be  no  valid  appropriation  which  the  legitimate  power  need 
recognize  when  restored  to  authority.  If  this  be  so,  the 
right  to  appropriate  debts  owing  to  the  legitimate  authority 
falls  of  itself,  for  debts  being  intangible  can  not  be  taken 
hold  of  and  carried  off  as  tangible  property  can  be. 

Right  to  collect  debts  due  the  legitimate  power. — The 
practice  of  appropriating  debts  due  the  legitimate  power  is 
too  well  established,  however,  to  be  questioned  as  a  rule  of 
law,  and  on  principle  it  has  the  weight  of  authority  in  its 
favor.  It  is  to  be  assimilated  to  the  rule  allowing  the  occu- 
pant to  collect  the  taxes  and  other  obligations  due  the  le- 
gitimate power  rather  than  to  that  for  the  appropriation 
of  tangible  property.  It  springs  from  the  authority  the 
occupant  has  over  the  persons  of  the  inhabitants  rather  than 
from  that  over  property  itself.  If  the  occupant  is  entitled 
to  collect  the  public  obligations  due  the  legitimate  power, 
there  seems  no  valid  reason  why  he  should  not  be  entitled 
to  the  private  obligations  due  the  legitimate  power  also.    In 


PUBLIC   AND  PRIVATE  PROPERTY.  325 

both  cases,  the  right  of  appropriation  is  purely  a  de  facto 
right.  As  far  as  either  claim  has  been  actually  paid  under 
compulsion,  such  payment  binds  the  legitimate  power,  but 
only  so  far.  The  release  of  an  obligation  beyond  the  amount 
actually  collected  is  in  no  wise  valid  against  the  restored 
sovereign. 

Property  held  in  trust  by  the  State  not  to  be  appropri- 
ated.— It  must  always  be  borne  in  mind  that  the  movable 
property  liable  to  seizure  is  property  belonging  to  the  State, 
not  to  local  communities,  and  that  it  must  belong  to  the 
State  in  its  own  right  and  not  as  trustee  for  others,  as  where 
savings  banks  and  insurance  companies  are  carried  on  by 
it.25 

Disposition  of  rolling  stock  owned  by  the  State. — A  point 
over  which  there  has  been  much  discussion  is  the  proper 
disposition  to  be  made  of  the  rolling  stock  of  railroads 
owned  by  the  State.  The  importance  of  such  rolling  stock 
to  a  modern  community  led  the  Institute  of  International 
Law  to  assimilate  it  to  private  property,  which  must  be  re- 
turned at  the  end  of  the  war,  but  this  view  did  not  prevail 
at  The  Hague,  the  sentiment  of  the  Committee  in  charge  of 
the  subject  being  that  the  disposition  of  the  rolling  stock 
should  be  settled  at  the  conclusion  of  peace.  This  prevents 
the  alienation  of  the  property  in  the  meantime,  and  so 
secures  some  of  the  advantage  that  would  have  been  derived 
from  the  rule  favored  by  the  Institute,  and  allows  all  the 
circumstances  of  each  case  to  be  taken  into  consideration. 

Rights  over  private  property.— The  second  paragraph 
deals  with  private  property.  Almost  necessarily  the  means 
of  transportation  and  communication  are  seized  by  the  oc- 
cupant and  kept  under  his  control  during  the  period  of  the 
occupation.  They  are  of  the  utmost  importance  to  him, 
and  besides  may  be  of  the  greatest  use  to  the  legitimate 
power  if  not  taken  into  the  occupant's  hands.  Receipts 
would  be  inapplicable  to  the  taking  over  of  properties  of 
this  kind  and  therefore  are  not  mentioned.  It  was  desired, 
especially  at  The  Hague,  that  the  seizure  of  these  instru- 
mentalities should  be  regarded  as  a  mere  sequestration. 
This  would  have  entitled  the  owners  to  an  accounting  of 
rents  and  profits,  when  their  property  was  handed  back  at 
the  conclusion  of  peace;  but  violent  opposition  to  this  view 

26  Protocol  11  of  the  Committee. 


326  MILITARY  OCCUPATION. 

manifested  itself,  and  it  was  agreed  that  the  compensation 
should  be  arranged  at  the  peace.  The  idea  was  not  so  much 
that  the  owners  should  not  be  fully  compensated,  as  that  it 
was  not  a  matter  of  international  right.  As  in  the  case  of 
contributions,  it  was  thought  best  to  leave  the  matter  of 
compensating  its  citizens  for  losses  sustained  in  the  war  to 
the  unsuccessful  party,  and  not  to  compel  her  to  pay  part 
of  them  in  full,  when  she  might  feel  that  she  could  dis- 
tribute the  burdens  of  the  war  more  equitably  on  some  other 
basis. 

Difference  between  means  of  transportation  and  com- 
munication and  munitions  of  war. — It  is  to  be  noticed  that 
means  of  transportation  and  communication  are  here  classed 
with  munitions  of  war  but  that  the  provision  that  they  shall 
be  restored  and  compensation  fixed  when  peace  is  made  is 
much  more  suitable  for  the  former  than  for  the  latter.  If 
munitions  of  war  are  restored  why  should  any  compensa- 
tion be  made?  In  the  case  of  the  means  of  transportation 
and  communication  on  the  other  hand  it  is  only  fair  that 
some  compensation  should  be  made  for  the  loss  of  profits 
in  the  meantime.  As  a  matter  of  fact,  the  two  classes  of 
property  were  sharply  distinguished  at  Brussels.  It  was 
felt  by  many  to  be  illogical  at  least  to  allow  contraband  at 
sea,  even  though  belonging  to  neutrals,  to  be  captured  and 
confiscated  and  yet  to  respect  the  same  kind  of  property 
on  land  when  belonging  to  enemies.  The  feeling  that  such 
property  should  be  subject  to  capture  was  so  strong  that 
careful  provision  was  made  that  the  requirements  about 
restoration  and  compensation  should  not  apply  to  it.  The 
Brussels  form  of  the  article  was  adopted  at  the  first  reading 
at  the  First  Peace  Conference,  but  it  was  afterwards 
changed.  It  seems  clear  from  M.  Rolin's  report  that  it  was 
desired  to  retain  the  Brussels  article  intact,  except  for  one 
clause  that  might  have  been  construed  to  uphold  the  seques- 
tration theory,  but  that,  after  the  omission  of  that  clause, 
it  was  thought  desirable  to  condense  the  whole  paragraph. 
There  was  no  declared  intention  of  doing  away  with  the  dis- 
tinction between  the  modes  of  treatment  of  the  two  classes 
of  property  mentioned,  and  any  such  attempt  would  cer- 
tainly have  given  rise  to  serious  opposition  just  as  it  did  at 
Brussels.    It  is  now  difficult  to  see,  however,  how  the  article 


PUBLIC  AND  PRIVATE  PROPERTY.  327 

can  so  be  construed  as  to  distinguish  between  the  two 
classes.20 

Ships  not  coming  under  the  rules  of  naval  law. — The  limi- 
tation that  the  vessels  to  which  this  article  applies  shall  be 
only  those  not  governed  by  naval  law  was  added  as  a  re- 
sult of  the  suggestion  of  the  Spanish  delegate  at  the  Brus- 
sels Conference  that  the  provisions  of  the  article  should  be 
limited  to  vessels  ''appertaining  to  the  navigation  of  inland 
waters,  of  unnavi gable  rivers  and  streams,  in  communication 
with  the  sea."  Baron  Lambermont  proposed  the  phrase 
"ships  apart  from  cases  governed  by  maritime  law,"  as  the 
equivalent  of  this,  and  it  was  accepted.27  In  the  United 
States  the  jurisdiction  of  the  courts  of  admiralty  extends 
to  all  waters  navigable  from  the  sea  by  vessels  of  ten  tons 
burden  and  it  seems  likely  that  the  Duke  de  Tetuan  had 
some  rule  of  this  kind  in  mind,  but  it  was  evidently  not 
what  the  Conference,  as  a  whole,  intended,  for  on  the  final 
reading  of  the  Project  in  full  conference,  Baron  Baude,  the 
French  delegate  said  that  his  government  feared  the  article 
might  not  be  interpreted  to  give  the  protection  the  Confer- 
ence intended  it  to  give  to  "the  maritime  commerce  of  sea 
ports  situated  on  large  streams,"  but  that  his  government 
would  interpret  the  phrase  in  its  broadest  and  most  abso- 
lute manner.  Baron  Lambermont,  who  had  proposed  the 
phrase,  said  he  would  interpret  it  in  the  same  way,  and  no 
objection  was  made  to  either  of  these  declarations.28  The 
meaning  of  the  Conference  would  appear  to  be  that,  where 
vessels  are  captured  in  the  interior  of  a  country  by  land 
forces,  even  though  naval  forces  may  have  cooperated  in 
the  seizure,  such  seizure  will  be  subject  to  the  rules  applic- 
able to  seizures  by  the  land  forces  and  not  to  those  applic- 
able to  captures  by  the  navy.  In  the  case  of  The  Thalia 
arising  during  the  Russo-Japanese  War  it  was  held  that  a 
ship  lying  on  the  land  alongside  a  dock  did  not  come  within 
the  exception.29 

The  phrasing  "all  appliances,  whether  on  land,  at  sea, 
or  in  the  air,  adapted  for  the  transmission  of  news,  or  for 
the  transport  of  persons  or  things,"   is  the  work  of  the 

-6  Conference  Internationale  de  la  Paix,  Part  I,  p.  62. 

27  Protocol  11  of  the  Committee. 

28  Protocol  4  of  the  Full  Conference. 

29  See  Takahashi,  p.  605,  et  seq. 


328  MILITARY  OCCUPATION. 

second  Conference  and  is  more  inclusive  than  the  old  phras- 
eology. 

H  LIV.  Submarine  cables  connecting  an  occupied  territory 
with  a  neutral  territory  shall  not  be  seized  or  destroyed  except 
in  the  case  of  absolute  necessity.  They  must  likewise  be  re- 
stored and  compensation  fixed  when  peace  is  made. 

Submarine  cables. — At  the  Brussels  Conference  it  was 
proposed  by  the  Danish  delegate  that  landing  cables  should 
be  included  in  the  protection  of  the  preceding  article,  but 
the  subject  was  one  on  which  the  Conference  had  received 
no  instruction  and  the  matter  was  left  to  a  future  confer- 
ence. The  Danish  proposal  was  adopted  at  the  first  Peace 
Conference  in  subcommittee,  but  was  dropped  at  the  last 
minute  in  full  conference  for  the  sake  of  harmony,  the  Brit- 
ish delegate  having  received  instructions  from  his  govern- 
ment that  it  feared  the  proposed  amendment  touched  on 
maritime  law.30  So  this  article  is  new,  taking  the  place  of 
the  old  Article  LIV  which  dealt  with  the  railway  plant  com- 
ing from  neutral  States  and  which  is  now  Article  XIX  of 
the  Convention  respecting  the  Rights  and  Duties  of  Neutrals 
in  case  of  War  on  land.  The  seizure  or  destruction  may 
take  place  within  the  territorial  waters  of  the  occupied  ter- 
ritory; whether  beyond  this  is  a  question  of  grave  doubt.31 

H  LV.  The  occupying  State  shall  be  regarded  only  as  ad- 
ministrator and  usufructuary  of  public  buildings,  real  estate, 
forests  and  agricultural  estates  belonging  to  the  hostile  State, 
and  situated  in  the  occupied  country.  It  must  safeguard  the 
capital  of  these  properties,  and  administer  them  in  accordance 
with  the  rules  of  usufruct. 

Contracts  of  exploitation  are  rendered  void  by  the  conclu- 
sion of  peace. — An  occupant  has  the  right  to  the  use  and 
the  revenues  of  immovable  property  of  the  hostile  State 
within  the  occupied  territory.  In  pursuance  of  this  right, 
he  may,  for  instance,  farm  out  the  public  railroads,  agri- 
cultural lands  and  forests.  Any  contracts  he  may  make  for 
this  purpose,  however,  become  inoperative  with  the  cessa- 
tion of  the  occupation  since  a  belligerent  cannot  be  allowed 
to  exploit  the  territory  of  another  after  his  occupation  has 
ceased;  and,  if  he  has  no  such  right  himself,  he  cannot  im- 
part it  to  another  by  means  of  a  contract.     The  contract 

so  Conference  Internationale  de  la  Paix,  Part  I,  p.  94-95. 
si  Westlake,  II  International  Law,  280-283.     ■ 


FORESTS.  329 

must  be  construed  as  subject  to  termination  by  the  cessation 
of  the  occupation.  Where  acts  of  appropriation  under  the 
contract  are  completed  before  the  cessation  of  hostilities, 
they  will  be  recognized  as  binding  by  the  legitimate  power 
when  its  authority  is  restored,  but  when  the  acts  are  not 
completed  as  where  wood  has  been  cut,  but  good  title  to  it 
has  not  yet  been  given  at  the  cessation  of  the  occupation, 
the  legitimate  authority  will  not  recognize  the  right  of  the 
contractors  to  go  ahead  and  perfect  the  title. 

Rights  over  forests. — It  was  desired  at  Brussels  that  the 
rights  of  the  occupant  in  the  forests  for  instance  should  be 
less  than  those  of  usufruct,  and  that  he  should  not  be  al- 
lowed to  touch  the  trees  of  larger  growth.  This  being 
clearly  contrary  to  the  sentiment  of  the  committee,  it  was 
proposed  that  it  should  at  least  be  required  that  the  forests 
should  be  worked  according  to  the  laws  of  the  occupied 
country ;  but,  as  this  would  often  be  impossible  through  the 
refusal  of  forest  officials  to  cooperate  with  the  occupant,  the 
proposal  was  rejected  and  the  prevailing  sentiment  was  that 
the  occupant  does  not  exceed  his  rights  so  long  as  he  works 
the  forests  according  to  some  recognized  method  of  forest 
administration.32 

Contracts  entered  into  by  the  occupant  as  administrator 
of  the  occupied  territory. — A  distinction  must  be  made  be- 
tween contracts  of  exploitation  which  the  occupant  makes 
for  his  own  advantage,  and  those  which  he  makes  in  his 
capacity  of  administrator  for  the  benefit  of  the  community. 
Measures  for  the  permanent  benefit  of  the  community  should 
be  left,  when  it  is  possible,  to  the  legitimate  power,  but 
there  may  be  cases  where  the  needs  of  the  community  are  so 
pressing  as  to  admit  of  no  delay,  and  if  in  such  a  case  a 
contract  is  let  for  the  work  which  extends  beyond  the  period 
of  occupation,  such  contract  is  valid  even  then,  if  it  was 
reasonably  within  the  scope  of  the  occupant's  essentially 
provisional  power.  Such  was  the  decision  of  the  Supreme 
Court  of  the  United  States  in  a  case  rising  out  of  the  Civil 
War.  During  the  military  occupation  of  New  Orleans  by 
the  United  States  forces,  it  became  necessary  to  make  cer- 
tain repairs  along  the  water  fronts  involving  the  expendi- 
ture of  large  sums  of  money.  Accordingly  a  contract  was 
entered  into  by  the  occupant  for  the  making  of  the  needed 

32  Supra,  p.  96. 


t 


330  MILITARY  OCCUPATION. 

repairs,  a  part  of  the  contract  being  a  lease  for  ten  years 
of  that  portion  of  the  water  front  to  which  the  repairs  were 
to  be  made.  It  was  held  that  this  lease  was  valid,  as  coming 
within  the  reasonable  scope  of  the  occupant's  administra- 
tive powers,  although  the  war  ended  less  than  a  year  later.33 

H  LVI.  The  property  of  municipalities,  that  of  institutions 
dedicated  to  religion,  charity  and  education,  the  arts  and  sci- 
ences, even  when  State  property,  shall  he  treated  as  private  prop- 
erty. 

All  seizure  of,  destruction  or  wilful  damage  done  to  institu- 
tions of  this  character,  historic  monuments,  works  of  art  and 
science,  is  forbidden  and  should  be  made  the  subject  of  legal 
proceedings. 

Property  of  localities,  churches,  etc.,  to  be  treated  as  pri- 
vate property. — It  may  be  that  in  some  cases  such  property 
will  be  subject  to  the  right  of  requisition  as  has  been  seen. 
General  Voigts-Rhetz,  at  Brussels,  expressly  refused  to  agree 
to  a  proposal  absolutely  forbidding  the  quartering  of  troops 
in  religious,  charitable  and  educational  institutions,  and 
in  hospitals,  but  if  such  quartering  is  ever  allowable,  it 
should  be  confined  to  cases  where  the  necessity  for  it  is 
imperative. 

A  belligerent  party  which  violates  the  provisions  of  the  said 
Regulations  shall,  if  the  case  demands,  be  liable  to  pay  compen- 
sation. It  shall  be  responsible  for  all  acts  committed  by  per- 
sons forming  part  of  its  armed  forces. 

This  article  was  originally  intended  as  H  LXI,  but  it  now 
forms  Article  III  of  the  Convention  as  distinguished  from 
the  Regulations. 

Sanction. — "Its  operation  will  be  to  require  those  charged 
by  their  Governments  with  the  exercise  of  high  military 
command  to  maintain  such  a  constant  supervision  over  the 
acts  of  their  subordinates  as  will  be  calculated  to  secure 
the  exact  and  rigorous  enforcement  of  the  several  require- 
ments of  the  convention.  If  the  circumstances  of  a  par- 
ticular war  are  such  as  to  suggest  the  application  of  a  rule 
of  limitation  to  cases  arising  under  the  article,  such  mutual 
stipulations  in  that  regard  as  are  warranted  by  the  facts 
may  properly  find  a  place  in  the  treaty  of  peace."34 

33  20  Wallace,  387. 

34  Extract  from  the  report  of  Gen.  Davis,  included  in  the  Report  of 
the  American  Delegation,  p.  37. 


TERMINATION  OF  WAR.  331 

TERMINATION  OF  WAR. 

Termination  of  war. — Hostilities  generally  cease,  if  a  gen-  v/ 
eral  armistice  is  not  already  in  existence,  on  the  signing 
of  the  preliminaries  of  peace,  or  of  the  treaty  of  peace  itself, 
notwithstanding  that  in  either  case  ratification  may  be  nec- 
essary to  make  these  agreements  fully  binding.  The  state 
of  war  is  usually  terminated  by  the  ratification  of  a  treaty 
of  peace,  or  by  the  absorption  of  one  of  the  belligerents  by 
the  other.  In  either  case,  the  controversies  that  gave  rise 
to  the  war  are  deemed  to  be  settled  by  it,  and  although  am- 
nesty for  all  offenses  connected  with  the  conduct  of  the 
war  is  usually  stipulated  in  the  treaty  of  peace,  if  it  is  not 
so  stipulated,  it  is  implied  from  the  Peace  itself.  Prisoners 
are  repatriated  as  soon  as  possible,  and  normal  relations  be- 
tween the  two  countries  and  the  inhabitants  thereof  are  re- 
sumed. Where  no  stipulation  is  made  to  the  contrary  in 
the  Treaty  of  Peace,  territory  in  the  possession  of  each  bel- 
ligerent at  the  conclusion  of  the  treaty  is  retained  by  him. 
This  is  a  convenient  rule,  as  it  saves  the  unsuccessful  bel- 
ligerent from  the  necessity  of  acknowledging  a  cession  of 
territory  he  may  be  compelled  to  make.  Private  rights  in 
either  ceded  or  conquered  territory  remain  unaffected  by 
the  transfer. 


332  APPENDIX    I. 


APPENDIX  I. 


REGULATIONS  AND  INSTRUCTIONS  OF  THE  JAPAN- 
ESE GOVERNMENT  ON  THE  TREATMENT  OF 
RUSSIAN  SUBJECTS  DURING  THE 
RUSSO-JAPANESE  WAR. 

Being  a  summary  of  an  article,  extracted  from  the  Revue 
de  Droit  International,  by  Masanosuke  Akiyama, 
Professor-doctor  in  law,  former  professor  in  the 
University  of  Tokio,  Counsellor  to  the  Minister  of 
War,  Counsellor  to  the  Bureau  of  Legislation  of  the 
Imperial  Cabinet,  and  Secretary  of  the  former  In- 
formation Bureau  for  Prisoners  of  War. 

Information  Bureau. — The  Bureau  of  Information  was 
constituted  by  imperial  decrees  of  February  21  and  Sep- 
tember 12,  1904.  Its  functions  were  carefully  worked  out 
to  conform  to  H  XIV,  XVI  and  XIX.  At  its  head  was  to 
be  placed  a  director  of  the  rank  of  either  general  or  colonel, 
who  was  to  be  responsible  to  the  Minister  of  War  and  who 
was  to  have  authority  to  demand  the  necessary  information 
from  the  different  military  and  naval  authorities  and  from 
the  hospitals  and  ambulances.  Beginning  with  March  30, 
1904,  the  Bureau  sent  the  information  required  by  The 
Hague  Regulations  every  ten  days  to  the  French  Minister 
at  Tokio,  but  an  agreement  was  reached  in  August  between 
the  Japanese  and  the  Russian  Bureau,  whereby  the  former 
was  to  send  its  information  to  the  Russian  legation  at  Pekin 
and  the  latter  to  the  Japanese  legation  at  Berlin.  From 
this  time  to  the  end  of  the  war  the  Japanese  Bureau  for- 
warded its  information  the  5th,  15th  and  25th  of  each 
month.  Special  effort  was  made  to  obtain  the  desired  in- 
formation concerning  Russian  officers  who  had  been  made 
prisoners  of  war,  by  telegraph.  The  work  of  the  Bureau 
increased  greatly  as  the  war  progressed.     At  its  close  its 


INFORMATION  BUREAU.  333 

personnel  consisted  of  the  director,  General  Hongo,  four  sec- 
retaries, a  financial  officer,  three  translators,  five  clerks  and 
twenty  employees. 

Regulation  of  service  in  detail. — By  decrees  of  the  Minis- 
ter of  "War  of  February  27,  and  September  12,  1904,  the 
service  was  regulated  in  detail.  Individual  cards  were  to 
be  made  giving  the  information  with  regard  to  prisoners 
of  war  now  specified  in  H  XIV.  They  were  also  to  indi- 
cate crimes  or  infractions  committed  by  prisoners.  Similar 
cards  were  also  to  be  made  for  the  sick  and  wounded  and 
those  found  dead  upon  the  field  of  battle.  After  the  re- 
establishment  of  peace  this  card  was  to  be  returned  to  the 
other  belligerent,  a  provision  now  incorporated  in  H  XIV, 
and  a  copy  kept  by  the  Minister  of  "War.  The  Bureau  was 
also,  if  occasion  offered,  to  give  its  views  to  the  Minister 
of  War  on  the  regulations  for  the  surveillance  of  stations 
of  prisoners  brought  to  its  attention,  and  under  the  same 
circumstances,  on  the  confiscation  or  prohibition  of  com- 
munications or  parcels  sent  to  or  by  the  prisoners.  Finally 
it  was  required  to  present  a  report  to  the  Minister  of  War 
each  month  relative  to  the  execution  of  the  service  and 
to  the  information  concerning  the  prisoners  both  in  Japan 
and  Russia. 

Statistics  of  the  Bureau. — Until  May  1,  1904,  the  number 
of  prisoners  was  very  small,  but  from  then  on  it  increased 
until  at  the  end  of  1904  there  were  136  officers  and  4,469 
petty  officers  and  soldiers  held  as  prisoners,  while  at  the 
end  of  the  war  there  were  1,436  officers  and  70,784  petty 
officers  and  men  interned  in  the  various  stations  in  Japan. 
In  the  following  statistics  of  the  Bureau  the  figures  for 
1905  include  those  for  1906  until  the  liberation  of  all  the 
prisoners  in  February. 


1904.  1905. 

Bureaucratic  communications  sent 659  5.211 

rec'd 1,728  11,601 

Information,  number  of  times  sent 246  1,824 

rec'd    778  4,090 

Postal  messages  sent 855  10,217 

rec'd 1,170  16,684 

Telegrams  sent   75  961 

rec'd      270  2,226 

Individual  cards  made    (prisoners) 3,838  68.482 

(enemies  killed  in  battle)  370  1,101 


334  APPENDIX    I. 

Letters  and  postal  cards  from  prisoners 1,318  145,537 

"           "       to  prisoners 508  67,750 

Gifts  in  money  to  prisoners 1,439.36  89,768.45 

yen  yen 

Gifts  in  kind  to  prisoners 12,641  61,637 

Remittances  of  objects  left  by  deceased  prisoners..             15  193 
"             "        "         "      "  enemies  killed  in  bat- 
tle               53  26 

Remittances  of  wills  of  prisoners  of  war 3  14 

The  number  of  times  information  was  sent  does  not  indi- 
cate the  number  of  individuals  with  regard  to  whom  it 
was  sent.  Often  the  names  of  6,000  prisoners  figured  on  a 
single  list.  These  figures  as  to  letters  and  postal  cards 
refer  only  to  those  which  passed  through  the  Bureau.  Cor- 
respondence between  the  prisoners  and  between  other  per- 
sons and  prisoners  was  free,  subject  to  the  censorship  of 
the  officials  at  each  station.  The  smallness  of  the  number 
of  cards  made  out  for  those  fallen  on  the  field  of  battle  and 
of  the  number  of  objects  left  by  them  is  explained  by  the 
fact  that  the  Russian  officers  and  soldiers  did  not  carry 
about  them  cards  or  other  marks  necessary  to  establish 
their  identity.1  The  Bureau  also  verified  the  information 
received  from  the  Russian  bureau  as  to  Japanese  prisoners 
in  Russia,  and  published  the  same  in  the  official  gazette. 

General  regulations  as  to  prisoners  of  war. — The  treat- 
ment of  prisoners  of  war  was  regulated  by  orders  of  the 
Minister  of  War  and  of  the  Marine.  The  order  of  the 
Minister  of  War  was  issued  February  14,  1907.  That  of 
the  Minister  of  Marine  was  issued  three  days  later  and 
was  along  the  same  lines,  although  not  as  detailed.  What 
made  it  notable  was  that  it  applied  to  prisoners  taken  by 
naval  forces,  the  rules  laid  down  in  The  Hague  Regulations 
for  prisoners  taken  by  the  army,  although  there  was  no 
international  convention  applicable  to  the  former.  Both 
orders  were  based  on  a  careful  study  of  the  Regulations 
and  breathe  their  humanitarian  spirit.  The  order  of  the 
Minister  of  War  consisted  of  thirty-four  articles,  but  they 
require  little  comment.  Article  8  applied  the  ordinance  on 
disciplinary  punishments  for  the  army  on  land,  to  the  pris- 
oners of  war,  except  where  special  provision  was  made. 
Article  23  provided  that  the  prisoners  should  be  divided 

i  For  table  of  objects  belonging  to  Russians  dead  on  the  field  of 
battle  or  dying  afterwards,  see  Takahashi,  p.  121. 


DETAILED  REGULATIONS.  335 

among  different  rooms  according  to  rank,  etc.,  and  that 
in  each  room  a  chief  should  be  appointed  who  should  rep- 
resent the  prisoners  and  be  responsible  for  discipline.  Arti- 
cle 25,  among  other  things,  prohibited  the  use  of  ciphers 
in  letters  and  telegrams.  Article  27  required  that  the 
regulations  drawn  up  by  the  commandants  for  the  sur- 
veillance of  prisoners  of  war  be  communicated  to  the  Min- 
ister of  War,  and  to  the  Bureau  of  Information.  Finally, 
Article  28  provided  that  the  sick  and  wounded  considered 
incapable  of  further  military  service  should  be  sent  back 
to  their  country  on  condition  of  not  retaking  arms,  al- 
though this  was  not  to  be  applicable  to  those  who  might 
be  of  importance  in  the  war. 

Statistics  as  to  prisoners. — The  total  number  of  prisoners 
during  the  war  was  84,445.  Of  these  10,442  were  freed  on 
the  scene  of  operations,  1,704  died  before  their  arrival  in 
the  interior,  379  died  in  the  stations  and  a  number  escaped 
after  the  establishment  of  peace.  Besides  the  1,271  officers 
captured  at  Port  Arthur,  77  out  of  the  257  officers  cap- 
tured in  the  naval  battle  of  the  Sea  of  Japan  received  per- 
mission to  retain  their  swords.  There  was  no  exchange 
of  prisoners,  although  negotiations  had  been  commenced 
a  little  before  the  end  of  the  war,  but  in  the  course  of  the 
campaign  the  Government  permitted  the  sick  and  the 
wounded  recognized  as  incapable  of  further  military  service 
to  return  to  their  country;  4,039  went  from  Port  Arthur, 
95  from  Kobe.  The  Empress  displayed  the  same  humanity 
towards  the  prisoners  as  towards  the  Japanese  soldiers  in 
supplying  them  with  artificial  eyes  and  limbs ;  154  prisoners 
received  glass  eyes  and  133  artificial  limbs. 

More  detailed  regulations  as  to  prisoners  of  war — Of  even 
more  interest  and  value  than  these  general  regulations  were 
the  special  ones  which  the  exigencies  of  the  war  called  forth. 
The  capture  of  604  prisoners  at  Chiu-lien-Cheng  gave  occa- 
sion for  the  more  detailed  regulation  as  to  the  treatment  of 
prisoners  of  war  of  May  15,  1904.  Article  4  provided. that 
prisoners  of  war  who  were  officers  or  adjutants  should  be 
entitled  to  choose  orderlies  from  among  the  prisoners,  ordi- 
narily at  the  rate  of  one  orderly  to  two  officers.  Articles  9 
and  10  guarded  against  the  improper  use  of  any  right  of 
visiting  given  to  foreigners  and  at  the  same  time  shielded 
the  prisoners  from  the  curiosity  of  the  inhabitants  by  re- 


336  APPENDIX   I. 

quiring  express  permission  of  the  commandant  of  the  gar- 
rison to  enter  the  stations.  In  giving  permission  to  visit 
to  those  who  had  relatives  among  the  prisoners,  the  au- 
thorities were  very  liberal,  and  many  subordinates  of  Bish- 
op Nicolais  of  the  Russian  Church,  as  well  as  Catholic 
priests  and  ministers  of  other  religions  received  authority 
to  celebrate  their  offices  in  the  stations,  while  the  prisoners 
were  allowed  to  confess  and  were  otherwise  left  alone  with 
the  priests,  notwithstanding  the  provision  of  Article  10 
that  interviews  with  foreigners  should  only  be  allowed 
under  surveillance. 

Nourishment  of  prisoners  of  war. — The  nourishment  of 
prisoners  of  war  was  to  be  furnished  in  kind  at  the  rate  of 
60  sen  per  day  for  officers  and  adjutants,  and  30  sen  per 
day  for  petty  officers  and  soldiers.  These  sums  were  nearly 
twice  those  allowed  Japanese  soldiers.  For  the  officers 
and  adjutants  the  cooking  was  to  be  done  by  the  orderlies, 
or  if  necessary  by  hired  men,  while  the  petty  officers  and 
soldiers  were  to  be  divided  into  small  groups  and  to  cook 
for  themselves.  Provision  was  also  made  that  the  above 
sums  might  be  employed  to  provide  tea,  biscuits,  cakes  and 
fruits  between  meals.  Sutlers  were  to  be  admitted  to  the 
stations,  but  the  prices  and  the  quality  of  the  objects  sold 
were  regulated  by  the  commandants  of  the  garrisons. 

Bedding  and  clothing. — By  Article  19,  suitable  bedding 
and  toilet  facilities  were  to  be  provided  for  the  officers  and 
men  and  they  were  to  be  allowed  to  retain  their  clothing. 
"When  this  was  worn  out  new  clothing  was  to  be  provided 
for  officers  and  adjutants,  and,  if  necessary,  for  the  petty 
officers  and  soldiers.  Ordinarily,  however,  the  latter  were 
to  receive  second-hand  clothing.  The  maximum  to  be  spent 
in  this  way  for  generals  was  30  yen2  in  winter  and  12  yen 
in  summer,  for  hats,  coats  and  trousers ;  5  yen  in  winter  and 
2.50  yen  in  summer,  for  underwear;  while  the  amount  paid 
for  shoes  was  to  be  determined  by  their  cost  at  the  time. 
From  these  maxima  the  tariff  ranged  down  to  those  for 
petty  officers  and  men  which  amounted  to  8  yen  in  winter 
and  3  yen  in  summer  for  hats,  coats  and  pants,  .83  yen  both 
winter  and  summer  for  underwear,  while  the  amount  to  be 
paid  for  shoes  was  determined  in  the  same  way  as  with  the 

2  A  gold  yen  corresponds  roughly  to  our  dollar.  A  sen  is  the  one- 
hundredth  part  of  a  yen. 


MAINTENANCE.  337 

officers.  These  sums  were  in  accord  with  those  allowed  in 
the  national  army.  Clothing  given  in  this  way  was  to  re- 
main the  property  of  the  prisoners  after  their  liberation. 

Amounts  allowed  for  keeping  clothes  in  repair  and  for 
objects  of  consumption. — In  addition  to  the  above  provis- 
ions made  for  lodging,  clothing  and  food,  the  prisoners  were 
to  be  allowed  certain  amounts  for  keeping  their  clothes  in 
order  and  for  objects  of  consumption.  Officers  and  ad- 
jutants were  to  receive  definite  sums  ranging  from  25  yen 
per  month  for  the  generals  to  5  yen  a  month  for  the  adju- 
tants. Those  below  adjutants  were  to  receive  the  actual 
amounts  spent,  not  to  exceed  1  yen  per  month  for  the  petty 
officers  and  .50  yen  per  month  for  the  soldiers.  In  consid- 
ering these  sums  it  is  necessary  to  bear  in  mind  that  the 
cost  of  living  in  Japan  is  hardly  half  of  that  in  Europe,  as 
shown  by  the  comparative  pay  in  the  French  and  Russian 
and  Japanese  armies.3  Deceased  prisoners  of  war  as  a 
general  rule  were  to  be  buried,  the  expense  thereof  not  to 
exceed  20  yen  for  officers  and  adjutants,  15  yen  for  petty 
officers  and  10  yen  for  the  soldiers. 

Places  of  Internment.  Interpreters. — The  prisoners  were 
interned  in  barracks,  public  buildings,  temples  and  large 
private  dwellings,  and  in  some  localities  many  temporary 
barracks  were  erected.  Stations  for  the  officers  and  adju- 
tants were  established  separate  from  those  for  the  petty 
officers  and  soldiers.  The  Government  took  care  to  attach 
a  certain  number  of  interpreters  to  each  station,  besides 
choosing  the  officials  of  the  station  from  those  versed  in 
French,  English  or  German,  and  although  there  was  much 
difficulty  in  doing  this  on  account  of  the  number  needed  at 
the  front,  182  interpreters  in  all  were  attached  to  the  dif- 
ferent stations.  They  helped  the  prisoners  in  their  work 
and  even  went  with  them  in  their  walks  outside  the  stations. 

Reading  matter. — Because  of  the  difficulty  of  obtaining 
a  sufficient  number  of  interpreters  to  read  all  the  journals 
of  the  world,  the  journals  in  a  foreign  tongue  to  which  the 
prisoners  were  allowed  access,  were  limited  to  the  Japan 
Times,  Japan  Mail,  Daily  Advertiser  and  Japan  Gazette  of 

s  The  question  as  to  the  pay  to  be  given  the  prisoners  did  not  arise, 
as  Russia  made  a  remittance  to  the  French  consul  each  month  for  that 
purpose.  The  pay  ranged  from  150  yen  per  month  for  the  generals  to 
50  sens  for  the  soldiers.     Takahashi,  p.  124. 

22 


338  APPENDIX    I. 

Japan,  the  London  Times,  Standard  and  Daily  Telegraph 
of  England,  le  Temps,  le  Radical  and  la  Lanterne  of  France, 
The  Sun,  The  Tribune  and  Washington  Post  of  the  United 
States,  Norddeutsche  Allgemeine  Zeitung  and  Berliner  Lo- 
kal-Anzeiger  of  Germany,  and  the  Neue  Freie  Presse  of 
Austria.  In  addition  they  were  allowed  to  read  all  the 
Japanese  journals  and  books,  pamphlets  or  journals  which 
were  sent  them,  with  the  exception  of  two  kinds  of  pamph- 
lets entitled  Osbovozgenie  and  Revolutionia  Russia  which 
had  been  sent  to  the  Bureau  of  Information,  but  were  not 
allowed  to  be  distributed  on  account  of  their  hostility  to 
the  Russian  Government.  The  printed  matter  donated  to 
the  prisoners  was  as  follows : 

1904.  1905. 

Journals 777  50,495 

parcels 2  157 

Books  and  pamphlets 10,198  341,939 

"      parcels 10,198  334 

Illustrated   pamphlets  and   portraits 1,344  10,178 

"      parcels 1,344  6 

Postal  service. — The  postal  service,  including  the  parcels- 
post  and  the  money  order  service,  were  regulated  by  or- 
ders of  the  minister  of  communications  of  March  3,  1904. 
In  accordance  with  The  Hague  Regulations  postal  com- 
munication was  made  free.  The  controllers  of  the  various 
stations  were  given  wide  powers  in  receiving  and  deliver- 
ing receipts  for  parcels  and  letters  of  declared  value,  and 
in  cashing  money  orders  without  special  procuration.  All 
letters  and  telegrams  were  examined  by  the  officers  of  the 
stations,  but  few  letters  were  not  allowed  to  pass.  Those 
messages  which  were  sent  to  or  received  by  the  prisoners 
on  the  field  of  operations  and  those  which  it  was  difficult 
to  examine  in  the  stations  were  sent  for  examination  to  the 
Bureau  of  Information.  As  at  times  the  correspondence 
was  written  in  Hebrew,  Finnish,  Lithuanian,  etc.,  it  was 
required  of  the  prisoners  that  they  write  either  in  Russian, 
Japanese,  French,  German  or  English.  The  number  of  com- 
munications of  the  prisoners  of  war  to  the  end  of  1905  is 
as  follows: 


PENAL  LAW. 


:;:)!) 


LETTERS,   CARDS    AM)    PARCELS    FREE   OF   TAXES. 

Sent.  Interdict  cd.         Received.     Confiscated. 

190.',. 

Interior    mail 1,049  0  1,071  2 

Foreign    mail 8,337  7  2,237  0 

1905. 

Interior   mail 32,294  25  51,851  48 

Foreign    mail 444,2!)(>  174  183,975  1 

MONEY   ORDERS   FREE   OF  TAXES. 


Sent. 
1904 — Interior  mail 13 

Foreign  mail 0 

1905 — Interior  mail 545 

Foreign  mail 30 

TELEGRAMS. 

Sent. 
1904 — Interior  service 35 

Foreign  service 27 

1905— Interior  service 1,164 

Foreign  service 1,043 


Received. 

28 

18 

328 

3,324 


Received. 

14 

18 

949 

806 


Regulations  as  to  punishment  of  prisoners  of  war. — As 

the  number  of  prisoners  increased  cases  of  resistance 
against  the  authorities  multiplied.  In  October  an  imperial 
decree  was  issued  regulating  the  punishment  of  prisoners 
of  war,  and  this  was  changed  to  a  law  in  February,  1905. 
By  Article  7  of  the  law  the  imperial  penal  code  was  made 
applicable  by  analogy  to  offenses  committed  by  prisoners 
in  absence  of  more  specific  provisions.  According  to  the 
code,  deportation  and  detention  are  applied  in  the  case  of 
crimes,  imprisonment  in  the  case  of  delicts.  Deportation 
to  an  island  prison  is  inflicted  for  crimes  whose  penalty  is 
from  12  to  15  years,  detention  in  an  interior  prison  for 
crimes  whose  penalty  is  from  5  to  11  years,  and  major  or 
minor  imprisonment  in  a  house  of  imprisonment  for  delicts 
whose  penalty  is  from  11  days  to  5  years.  Prisoners  of  war 
culpable  of  resistance  or  violence  to  the  authorities  were  to 
be  punished  by  a  detention  major,  or  in  case  of  extenuating 
circumstances  by  a  minor  imprisonment  of  from  6  months 
to  5  years,  but  when  either  of  these  acts  should  have  been 
committed  as  a  result  of  conspiracy,  the  leaders  were  to 


340  APPENDIX    I. 

be  punishable  with  death,  the  others  to  deportation,  and 
under  extenuating  circumstances,  to  major  detention. 
Whenever  there  should  be  a  collective  escape  resulting  from 
conspiracy,  the  principal  authors  were  to  be  condemned 
to  deportation,  and  in  case  of  aggravating  circumstances  to 
death,  while  the  others  were  to  suffer  major  detention,  or 
under  extenuating  circumstances  minor  imprisonment  from 
6  months  to  5  years.  Breach  of  parole  was  to  be  punished 
by  a  major  detention ;  if  accompanied  by  an  act  of  hostility 
with  arms  in  hand,  by  death.  Breach  of  promise  not  to 
attempt  to  escape  was  also  to  be  punished  by  major  de- 
tention; the  violation  of  all  other  engagements  by  minor 
imprisonment.  The  penalties  for  acts  of  resistance  and 
violence,  and  plots  to  escape  were  to  be  applicable  only 
during  a  first  imprisonment,  and  were  to  be  wiped  out  by 
a  successful  escape. 

Infractions. — During  the  war  there  were  in  all  23  cases 
of  infractions  of  the  regulation,  but  no  one  was  executed, 
the  most  severe  penalty  being  the  deportation  of  a  Cossack 
officer  for  twice  having  attempted  a  collective  escape  as 
principal.  At  the  end  of  the  war,  95  prisoners,  comprising 
11  officers,  were  detained  for  crimes  or  delicts  in  virtue  of 
the  regulation,  or  of  the  penal  code.  They  were  all  put 
at  liberty  with  permission  to  return  to  their  country,  by  a 
special  amnesty  of  the  Emperor  on  the  day  of  the  publica- 
tion of  the  treaty  of  peace. 

Employment  of  prisoners. — There  was  no  great  demand 
for  workers  during  the  war  either  for  public  works  or  for 
the  great  corporations,  and  the  most  part  of  the  prisoners 
did  no  work  even  on  their  own  account,  although  on  cer- 
tain occasions  individual  prisoners  were  voluntarily  hired 
by  private  persons.  In  these  cases  the  Government  allowed 
them  to  dispose  of  their  entire  earnings.  The  result  of  this 
lack  of  work  was  that  there  was  little  occasion  for  the  ap- 
plication of  the  order  of  the  minister  of  war  of  September 
10,  1904,  regulating  the  work  of  prisoners  of  war.  It  was 
based  on  a  careful  study  of  The  Hague  Regulations,  how- 
ever, and  is  of  value  as  an  interpretation  of  them. 

Regulations  as  to  free  promenade  and  living  in  private 
houses. — Despite  the  decree  of  October  for  punishment  of 
prisoners  of  war,  an  officer  and  five  soldiers  made  a  new 
attempt  to  escape  the  following  January.    Notwithstanding 


FREE  PROMENADE.  341 

this,  however,  the  long  promised  regulation  for  giving  offi- 
cers the  privilege  of  free  promenade  and  of  living  in  pri- 
vate houses  was  proclaimed  by  an  order  of  the  minister  of 
war  of  March  18,  1905.  Under  it  officers  who  would  give 
their  parole  not  to  escape  and  to  submit  to  the  discipline 
and  good  manners  of  the  imperial  army,  might  be  permitted 
by  the  commandant  of  the  garrison  to  promenade  freely, 
or  to  live  in  private  houses,  in  case  they  should  wish  to  live 
with  their  wives,  or  under  other  special  circumstances.  The 
permission  to  live  in  private  houses,  however,  had  to  be 
approved  by  the  minister  of  war.  The  time  for  the  prome- 
nade was  generally  fixed  at  from  eight  o'clock  in  the  morn- 
ing to  midday,  and  from  one  to  four  in  the  afternoon. 
Nearly  all  the  officers  were  enabled  to  take  advantage  of 
this  privilege. 

Prisoners  of  war  receiving  either  of  the  above  privileges 
were  not  to  carry  arms,  nor  were  those  who  had  the  privilege 
of  free  promenade  to  send  or  receive  correspondence  during 
the  promenade,  while  those  dwelling  in  private  houses,  and 
their  cohabitants,  were  to  subject  letters  sent  by  them  to 
the  supervision  of  the  authorities  of  the  station,  and  were 
to  receive  correspondence  only  after  it  had  undergone  like 
censorship.  Those  on  promenade  were  not  to  visit  those 
dwelling  outside  the  station  without  the  authority  of  the 
commandant  of  the  station.  The  officers  dwelling  in  pri- 
vate houses  were  not  to  go  beyond  certain  limits,  were  to 
be  subject  to  the  orders  of  the  various  authorities,  and  were 
to  be  formed  into  groups  of  about  ten  under  the  authority 
of  their  senior,  who  was  to  represent  and  be  responsible  for 
them.  Each  day  they  and  their  cohabitants  were  to  indi- 
cate their  presence  by  signing  the  roll  book  kept  for  that 
purpose.  A  special  book  and  a  special  journal  were  to  be 
kept  for  them,  giving  their  statistics,  physical  description 
and  photographs.  Instead  of  the  allowances  made  to  pris- 
oners within  the  stations,  generals  were  to  receive  800  yens 
per  year,  superior  officers  600  yens  and  inferior  officers  500 
yens.  Not  many  of  the  officers  took  advantage  of  this  op- 
portunity of  living  outside  the  stations.4 

4  Mr.  Takahashi  says  that  many  applications  were  made,  but  that  as 
it  was  impossible  to  grant  all  the  applications  without  hazarding  the 
maintenance  of  order,  it  was  decided  to  grant  but  a  few.  The  number 
reached  39  in  all.    Takahashi,  pp.  108-109. 


342  APPENDIX    I. 

Treatment  of  Russian  sanitary  personnel. — At  the  begin- 
ning of  the  war  a  number  of  the  Russian  sanitary  personnel 
were  detained  for  some  time  at  Matsuyama,  possibly  with 
a  view  to  assuring  the  secrecy  of  military  operations,  but 
from  the  battle  of  Liao-Yang  in  August,  1904,  those  who 
fell  into  the  power  of  the  Japanese  army  were  sent  regu- 
larly to  the  advance-posts  of  the  enemy  or  to  the  French 
consul  of  the  nearest  Chinese  port.  The  Russian  sanitary 
personnel  at  Port  Arthur,  consisting  of  2,790  persons,  re- 
mained from  the  date  of  the  capitulation,  January  5,  1905, 
until  March  of  the  same  year,  concurring  with  the  Japanese 
sanitary  personnel  in  the  care  of  the  15,138  sick  and 
wounded  Russians. 

Gifts  and  relief  in  kind. — The  second  paragraph  of  H 
XVI  providing  that  gifts  and  relief  in  kind  for  prisoners 
of  war  shall  be  free  from  imposts  and  other  duties  as  well 
as  from  charges  for  carriage  by  Government  railways,  was 
carefully  observed.  Many  of  the  private  railroad  and  navi- 
gation companies  voluntarily  adopted  a  like  rule. 

Care  for  the  dead. — In  the  course  of  this  war  as  in  the 
Chinese-Japanese  war,  the  sick,  the  wounded  and  the  dead 
of  both  armies  were  searched  and  cared  for  immediately 
after  each  action  without  distinction.  The  bodies  of  the 
dead  Japanese  were  burned,  and  those  of  the  enemy  buried, 
only  after  proof  of  death,  and  after  the  attempt  had  been 
made  to  identify  the  bodies  by  all  available  means.  In  the 
order  of  the  minister  of  war  of  May  30,  1904,  there  were 
carefully  elaborated  provisions  to  ensure  proper  sanitary 
arrangements  for  the  collection,  burning  and  burial  of  the 
dead,  not  only  of  the  two  armies,  but  of  the  bodies  of  the 
inhabitants  found  on  the  field  of  battle.  Objects  left  by 
dead  Russians,  except  arms,  horses  and  military  documents, 
were  to  be  sent  with  the  information  obtained,  to  the  Bu- 
reau of  Information.  Those  left  by  the  Japanese  dead  or 
by  the  inhabitants  fallen  on  the  field  of  battle  were  to  be 
transmitted  to  suitable  military  authorities. 

Cemeteries  for  the  Russian  dead. — The  number  of  the 
Russian  dead  was  very  great,  and  vast  cemeteries  were  es- 
tablished. After  the  conclusion  of  peace  the  military  au- 
thorities made  every  effort  to  preserve  the  graves  intact, 
but  they  encountered  insurmountable  difficulties  because  of 
the  treeless,  even  bushless  character  of  the  country,  the  ir- 


^INSTRUCTIONS.  343 

regular  courses  of  the  streams,  the  devastating  effects  of 
the  rains,  and  finally,  the  robberies  of  the  inhabitants. 
From  January  21,  1906,  Marshal  Oshima,  Governor-General 
of  Kwantung,  gave  permission  to  foreigners  to  enter  all  the 
districts  under  his  jurisdiction,  and  to  search  for  and  carry 
away  with  the  authorization  of  the  military  authorities  the 
objects  or  bodies  left  in  Manchuria.  Many  Russians  took 
advantage  of  the  opportunity  offered. 

Instructions  to  reconcile  differences  in  the  treatment  of 
the  prisoners, — The  number  of  stations  required  for  the 
prisoners  of  war  after  the  taking  of  Port  Arthur  led  to  con- 
siderable differences  in  the  treatment  of  the  prisoners,  es- 
pecially in  the  matter  of  free  promenade  and  living  in  pri- 
vate houses  which  led  the  minister  of  war  on  May  15,  1905, 
to  issue  instructions  to  the  various  commandants  with  the 
idea  of  reconciling  these  differences.  He  drew  attention  to 
the  fact  that  while  the  Russian  prisoners  seemed  to  think 
that  they  had  done  their  entire  duty  to  their  country,  the 
Japanese  regarded  it  a  disgrace  to  be  a  prisoner,  and  ac- 
cordingly warned  the  commandants  against  allowing  this 
to  be  the  occasion  of  provocation.  Colonel  Kono,  chief  of 
the  station  of  Matsuyama,  on  observing  that  a  large  number 
of  Russians  could  not  write  to  their  families,  had  advised 
them  to  take  lessons  in  Russian.  His  advice  was  adopted 
and  the  example  followed  in  nearly  all  the  stations,  but  the 
minister  of  war  warned  the  commandants  that  neither  this 
nor  instruction  in  physical  training  was  to  be  made  compul- 
sory. He  also  warned  against  pointing  the  finger  at  prisoners 
or  touching  them  with  the  hands,  except  in  proper  cases  of 
discipline,  and  directed  that  officers  on  parole  living  in  pri- 
vate houses  should  not  be  accompanied  by  guards.  He 
likewise  directed  that  the  districts  within  which  they  might 
walk  should  be  chosen  so  as  to  be  as  pleasant  as  possible, 
that  they  should  not  be  forbidden  to  enter  places  where  a 
public  calling  was  carried  on,  that  due  respect  should  be 
shown  for  their  wish  to  observe  certain  days  as  sacred,  that 
noncommissioned  officers  and  soldiers  should  be  allowed 
more  than  two  promenades  a  week  as  far  as  possible,  and 
that  except  for  arms  and  other  military  objects,  officers  on 
parole  should  be  permitted  to  purchase  objects  without  be- 
ing required  to  make  a  previous  written  demand. 

Repatriation  of  prisoners. — In  accordance  with  the  Treaty 


344  APPENDIX   I. 

of  Portsmouth  and  The  Hague  Regulations,  the  repatria- 
tion of  the  prisoners  took  place  as  rapidly  as  possible  on 
the  conclusion  of  peace.  The  details  of  the  evacuation 
were  arranged  for  in  an  agreement  drawn  up  by  the  Russian 
special  commissary,  Danilow,  on  the  one  hand,  and  the 
Japanese  Bureau  of  Information  on  the  other.  On  the  pub- 
lication of  the  Treaty  of  Portsmouth  the  law  for  the  punish- 
ment of  prisoners  of  war  was  suspended  and  every  liberty 
compatible  with  order  given  the  prisoners  while  they  were 
still  allowed  the  privileges  of  free  postage  and  freedom 
from  duties,  and  transportation  charges  on  goods  destined 
to  them. 


LAWS  AND  CUSTOMS  OF  WAR  ON  LAND.  345 


APPENDIX  II. 


LAWS  AND  CUSTOMS  OF  WAR  ON  LAND. 

A  Convention  signed  by  the  Delegates  of  the  United 
States  to  the  Second  International  Peace  Confer- 
ence held  at  The  Hague  from  June  15  to  October  8, 
1907,  respecting  the  laws  and  customs  of  war  on 

LAND. 

His  Majesty,  the  German  Emperor,  King  of  Prussia;  the 
President  of  the  United  States  of  America;  the  President 
of  the  Argentine  Republic;  His  Majesty,  the  Emperor  of 
Austria,  King  of  Bohemia,  etc.,  and  Apostolic  King  of  Hun- 
gary ;  His  Majesty,  the  King  of  the  Belgiums ;  the  President 
of  the  Republic  of  Bolivia;  the  President  of  the  Republic 
of  the  United  States  of  Brazil;  His  Royal  Highness,  the 
Prince  of  Bulgaria;  the  President  of  the  Republic  of  Chili; 
His  Majesty,  the  Emperor  of  China;  the  President  of  the 
Republic  of  Columbia;  the  Provisional  Governor  of  the  Re- 
public of  Cuba;  His  Majesty,  the  King  of  Denmark;  the 
President  of  the  Dominican  Republic ;  the  President  of  the 
Republic  of  Ecuador;  His  Majesty,  the  King  of  Spain;  the 
President  of  the  French  Republic;  His  Majesty,  the  King 
of  the  United  Kingdom  of  Great  Britain  and  Ireland  and 
of  the  British  Dominions  beyond  the  Seas,  Emperor  of  In- 
dia; His  Majesty  the  King  of  the  Hellenes;  the  President  of 
the  Republic  of  Guatemala;  the  President  of  the  Republic 
of  Haiti;  His  Majesty,  the  King  of  Italy;  His  Majesty,  the 
Emperor  of  Japan;  His  Royal  Highness,  the  Grand  Duke 
of  Luxemburg,  Duke  of  Nassau ;  the  President  of  the  Unit- 
ed States  of  Mexico ;  His  Royal  Highness,  the  Prince  of 
Montenegro ;  the  President  of  the  Republic  of  Nicaragua ; 
His  Majesty,  the  King  of  Norway;  the  President  of  the  Re- 
public of  Panama;  the  President  of  the  Republic  of  Para- 
guay;  Her  Majesty,   the   Queen  of  the   Netherlands;   the 


346  APPENDIX  II. 

President  of  the  Republic  of  Peru;  His  Imperial  Majesty, 
the  Shah  of  Persia;  His  Majesty,  the  King  of  Portugal  and 
of  the  Algarves,  etc.;  His  Majesty,  the  King  of  Roumania; 
His  Majesty,  the  Emperor  of  All  the  Russias ;  the  President 
of  the  Republic  of  Salvador;  His  Majesty,  the  King  of 
Servia;  His  Majesty,  the  King  of  Siam;  His  Majesty,  the 
King  of  Sweden;  the  Swiss  Federal  Council;  His  Majesty, 
the  Emperor  of  the  Ottomans ;  the  President  of  the  Oriental 
Republic  of  Uruguay;  the  President  of  the  United  States 
of  Venezuela. 

Seeing  that,  while  seeking  means  to  preserve  peace  and 
prevent  armed  conflicts  between  nations,  it  is  likewise  nec- 
essary to  bear  in  mind  the  case  where  the  appeal  to  arms 
has  been  brought  about  by  events  which  their  care  was  un- 
able to  avert; 

Animated  by  the  desire  to  serve,  even  in  this  extreme 
case,  the  interests  of  humanity  and  the  ever  progressive 
needs  of  civilization; 

Thinking  it  important,  with  this  object,  to  revise  the  gen- 
eral laws  and  customs  of  war,  either  with  a  view  to  defining 
them  with  greater  precision  or  to  confining  them  within 
such  limits  as  would  mitigate  their  severity  as  far  as  pos- 
sible ; 

Have  deemed  it  necessary  to  complete  and  explain  in 
certain  particulars  the  work  of  the  First  Peace  Conference, 
which,  following  on  the  Brussels  Conference  of  1874,  and 
inspired  by  the  ideas  dictated  by  a  wise  and  generous  fore- 
thought, adopted  provisions  intended  to  define  and  govern 
the  usages  of  war  on  land. 

According  to  the  views  of  the  High  Contracting  Parties, 
these  provisions,  the  wording  of  which  has  been  inspired 
by  the  desire  to  diminish  the  evils  of  war,  as  far  as  mili- 
tary requirements  permit,  are  intended  to  serve  as  a  general 
rule  of  conduct  for  the  belligerents  in  their  mutual  rela- 
tions and  in  their  relations  with  the  inhabitants. 

It  has  not,  however,  been  found  possible  at  present  to 
concert  Regulations  covering  all  the  circumstances  which 
arise  in  practice ; 

On  the  other  hand,  the  High  Contracting  Parties  clearly 
do  not  intend  that  unforeseen  cases  should,  in  the  absence 
of  a  written  undertaking,  be  left  to  the  arbitrary  judgment 
of  military  commanders. 


LAWS    AND    CUSTOMS    OF    WAR    OX    LAND.  347 

Until  a  more  complete  code  of  the  laws  of  war  has  been 
issued,  the  High  Contracting  Parties  deem  it  expedient  to 
declare  that  in  cases  not  included  in  the  Regulations  adopt- 
ed by  them,  the  inhabitants  and  the  belligerents  remain 
under  the  protection  and  the  rule  of  the  principles  of  the 
law  of  nations,  as  they  result  from  the  usages  established 
among  civilized  peoples,  from  the  laws  of  humanity,  and 
the  dictates  of  the  public  conscience. 

They  declare  that  it  is  in  this  sense  especially  that  Ar- 
ticles I  and  II  of  the  Regulations  adopted  must  be  under- 
stood. 

The  High  Contracting  Parties,  wishing  to  conclude  a 
fresh  Convention  to  this  effect,  have  appointed  the  follow- 
ing as  their  Plenipotentiaries : 

[For  names  of  Plenipotentiaries,  see  Final  Act.] 

Who,  after  having  deposited  their  full  powers,  found  in 
good  and  due  form,  have  agreed  upon  the  following: 

Article  I. 

The  Contracting  Powers  shall  issue  instructions  to  their 
armed  land  forces  which  shall  be  in  conformity  with  the 
Regulations  respecting  the  Laws  and  Customs  of  War  on 
Land,  annexed  to  the  present  Convention. 

Article  II. 

The  provisions  contained  in  the  Regulations  referred  to 
in  Article  I,  as  well  as  in  the  present  Convention,  do  not 
apply  except  between  Contracting  Powers,  and  then  only 
if  all  the  belligerents  are  parties  to  the  Convention. 

Article  III. 

A  belligerent  party  which  violates  the  provisions  of  the 
said  Regulations  shall,  if  the  case  demands,  be  liable  to  pay 
compensation.  It  shall  be  responsible  for  all  acts  commit- 
ted by  persons  forming  part  of  its  armed  forces. 

Article  IV. 

The  present  Convention,  duly  ratified,  shall  as  between 
the  Contracting  Powers,  be  substituted  for  the  Convention 
of  the  29th  July,  1899,  respecting  the  Laws  and  Customs 
of  War  on  Land. 


348  APPENDIX  II. 

The  Convention  of  1899  remains  in  force  as  between  the 
Powers  which  signed  it,  and  which  do  not  also  ratify  the 
present  Convention. 

Article  V. 

The  present  Convention  shall  be  ratified  as  soon  as  pos- 
sible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

The  first  deposit  of  ratification  shall  be  recorded  in  a 
proccs-verbal  signed  by  the  Representatives  of  the  Powers 
which  take  part  therein  and  by  the  Netherland  Minister  for 
Foreign  Affairs. 

The  subsequent  deposits  of  ratifications  shall  be  made  by 
means  of  a  written  notification,  addressed  to  the  Nether- 
land Government  and  accompanied  by  the  instrument  of 
ratification. 

A  duly  certified  copy  of  the  proces-verbal  relative  to  the 
first  deposit  of  ratification,  of  the  notifications  mentioned 
in  the  preceding  paragraph,  as  well  as  of  the  instruments 
of  ratification,  shall  be  immediately  sent  by  the  Netherland 
Government,  through  the  diplomatic  channel,  to  the  Powers 
invited  to  the  Second  Peace  Conference,  as  well  as  to  the 
other  Powers  which  have  adhered  to  the  Convention.  In 
the  cases  contemplated  in  the  preceding  paragraph  the  said 
Government  shall  at  the  same  time  inform  them  of  the  date 
on  which  it  received  the  notification. 

Article  VI. 

Nonsignatory  Powers  may  adhere  to  the  present  Conven- 
tion. 

The  Power  which  desires  to  adhere  notifies  in  writing 
its  intention  to  the  Netherland  Government,  forwarding  to 
it  the  act  of  adhesion,  which  shall  be  deposited  in  the  ar- 
chives of  the  said  Government. 

This  Government  shall  at  once  transmit  to  all  the  other 
Powers  a  duly  certified  copy  of  the  notification  as  well  as 
of  the  act  of  adhesion,  mentioning  the  date  on  which  it 
received  the  notification. 

Article  VII. 

The  present  convention  shall  come  in  force,  in  the  case 
of  the  Powers  which  were  a  party  to  the  first  deposit  of 


LAWS    AND    CUSTOMS    OF    WAR    ON     LAND.  349 

ratification  sixty  days  after  the  date  of  the  proces-verbal 
of  this  deposit,  and  in  the  case  of  the  Powers  which  ratify 
subsequently  or  which  adhere,  sixty  days  after  the  notifica- 
tion of  their  ratification  or  of  their  adhesion  has  been  re- 
ceived by  the  Netherland  Government. 

Article  VIII. 

In  the  event  of  one  of  the  Contracting  Powers  wishing 
*,o  denounce  the  present  Convention,  the  denunciation  shall 
be  notified  in  writing  to  the  Netherland  Government,  which 
shall  at  once  communicate  a  duly  certified  copy  of  the  noti- 
fication to  all  the  other  Powers,  informing  them  of  the  date 
on  which  it  was  received. 

The  denunciation  shall  only  have  effect  in  regard  to  the 
notifying  Power,  and  one  year  after  the  notification  has 
reached  the  Netherland  Government. 

Article  IX. 

A  register  kept  by  the  Netherland  Ministry  for  Foreign 
Affairs  shall  give  the  date  of  the  deposit  of  ratification 
made  in  virtue  of  Article  V,  paragraphs  3  and  4,  as  well  as 
the  date  on  which  the  notifications  of  adhesion  (Article 
VI,  paragraph  2)  or  of  denunciation  (Article  VIII,  para- 
graph 1)  were  received. 

Each  Contracting  Power  is  entitled  to  have  access  to  this 
register  and  to  be  supplied  with  duly  certified  extracts. 

In  faith  whereof  the  Plenipotentiaries  have  appended 
their  signatures  to  the  present  Convention. 

Done  at  The  Hague,  the  18th  October,  1907,  in  a  single 
copy,  which  shall  remain  deposited  in  the  archives  of  the 
Netherland  Government,  and  duly  certified  copies  of  which 
shall  be  sent,  through  the  diplomatic  channel,  to  the  Powers 
which  have  been  invited  to  the  Second  Peace  Conference. 

ANNEX  TO  THE  CONVENTION. 

Regulations  respecting  the  Laws  and  Customs  of  War 
on  Land. 
[For  the  Articles  of  the  Regulations,  see  the  body  of  this 
work.] 


350  APPENDIX  III. 


APPENDIX  III. 


DISCHARGING  PROJECTILES  FROM  BALLOONS. 

A  Declaration  signed  by  the  Delegates  of  the  United 
States  to  the  Second  International  Peace  Confer- 
ence held  at  The  Hague  from  June  15  to  October  18, 
1907,  prohibiting  the  discharge  of  projectiles  and 
explosives  from  balloons. 

The  Undersigned,  Plenipotentiaries  of  the  Powers  invited 
to  the  Second  International  Peace  Conference  at  The 
Hague,  duly  authorized  to  that  effect  by  their  Governments, 
inspired  by  the  sentiments  which  found  expression  in  the 
Declaration  of  St.  Petersburg  of  the  29th  November  (11th 
December),  1868,  and  being  desirous  of  renewing  the 
declaration  of  The  Hague  of  the  29th  July,  1899,  which  has 
now  expired, 

Declare : 

The  Contracting  Powers  agree  to  prohibit,  for  a  period 
extending  to  the  close  of  the  Third  Peace  Conference,  the 
discharge  of  projectiles  and  explosives  from  balloons  or  by 
other  new  methods  of  a  similar  nature. 

The  present  Declaration  is  only  binding  on  the  Contract- 
ing Powers  in  case  of  war  between  two  or  more  of  them. 

It  shall  cease  to  be  binding  from  the  time  when,  in  a  war 
between  the  Contracting  Powers,  one  of  the  belligerents  is 
joined  by  a  Noncontracting  Power. 

The  present  Declaration  shall  be  ratified  as  soon  as  pos- 
sible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

A  proces-verbal  shall  be  drawn  up  recording  the  receipt 
of  the  ratifications,  of  which  a  duly  certified  copy  shall  be 
sent,  through  the  diplomatic  channel,  to  all  the  Contracting 
Powers. 

Nonsignatory  Powers  may  adhere  to  the  present  Declara- 


DISCHARGING  PROJECTILES  FROM  BALLOONS.  351 

tion.  To  do  so,  they  must  make  known  their  adhesion  to 
the  Contracting  Powers  by  means  of  a  written  notification, 
addressed  to  the  Netherland  Government,  and  communi- 
cated by  it  to  all  the  other  Contracting  Powers. 

In  the  event  of  one  of  the  High  Contracting  Parties  de- 
nouncing the  present  Declaration,  such  denunciation  shall 
not  take  effect  until  a  year  after  the  notification  made  in 
writing  to  the  Netherland  Government,  and  forthwith  com- 
municated by  it  to  all  the  other  Contracting  Powers. 

This  denunciation  shall  only  have  effect  in  regard  to  the 
notifying  Power. 

In  faith  whereof  the  Plenipotentiaries  have  appended 
their  signatures  to  the  present  Declaration. 

Done  at  The  Hague,  the  18th  October,  1907,  in  a  single 
copy,  which  shall  remain  deposited  in  the  archives  of  the 
Netherland  Government,  and  duly  certified  copies  of  which 
shall  be  sent,  through  the  diplomatic  channel,  to  the  Con- 
tracting Powers. 


INDEX 


22 


INDEX. 


References  are  to  pages. 

Additional  Articles  of  1868,  see  Geneva  Conventions. 

Alien  Enemy,  Plea  of,  not  favorably  received  in  American 
courts,  209;  affected  by  H  XXIII  (h),  210,  284. 

Alienations,  see  Forfeitures. 

Allies,  declarations  of  war  against,  unnecessary  under  old 
rule,  37;  enemy  character  of  not  to  be  determined  by  the 
courts,   219. 

Andre,    hanging   of,    51. 

Angary,  right  of,  213. 

Armistices,  terminology  of,  294;  what  is  permitted  during 
should  be  expressly  stipulated,  295;  right  to  supply  pro- 
visions during,  295;  notification  of,  296;  neutral  zone 
during,   296;  violations  oi,  296. 

Arms,  arbalest  or  crossbow  and  machines  throwing  projectiles 
prohibited  by  decretal  of  Innocent  III,  21;  prejudice 
against  firearms  in  Middle  Ages,  22 ;  proposed  limitations 
as  to  field  guns  and  muskets  at  the  First  Peace  Confer- 
ence, 130,  131;  naval  guns  and  armor  plate,  134;  wish 
of  the  First  Peace  Conference  as  to  naval  guns  and 
rifles,  137;  causing  unnecessary  suffering  prohibited,  283; 
see  also.   Projectiles. 

Art  treasures,  respect  for,  enjoined  by  Grotius,  33;  seizure 
of  by  Napoleon,  61;  prior  to  Napoleon,  61;  during  bom- 
bardments, 288,  290;  prohibition  of  injury  to,  330. 

Aryans,  high  standards  shown  in  early  war-practice  of,  8. 

Assassination,  of  William  the  Silent,  p.  30;  prohibition  of  in 
H  XXIII(b),  282. 

Assault,  see  Pillage  and  Bombardment. 

Ayala,  Bathazar,  life  and  work  of,  27. 

Balloonists,  see  Spies. 

Balloons,  throwing  of  projectiles  from,  130,  187,  279,  350. 

Beasts  of  Burden,  see  Noncombatants. 

Belli,  Pierino,  life  and  work  of,  26. 

Bernard,  Mountague,  on  the  period  of  peace  following  the 
Napoleonic  wars,    64. 

355 


356  INDEX. 

References  are  to  pages. 

Boer  Kepublics,  annexation  of,  144;  see  South  African  War. 

Bombardments,  practice  with  regard  to  in  Franco-German 
War,  89;  undefended  towns  not  to  be  subject  to,  286; 
of  resident  portions  of  towns,  287 ;  necessity  of  warning 
except  in  cases  of  assault,  287;  sign  for  protection  during, 
288. 

Bombardments  by  Naval  Forces,  wish  of  the  First  Peace 
Conference  with  regard  to,  137;  convention  of  Second 
Peace  Conference  on,  187,  288;  of  places  guarded  by 
mines,  289;  for  declining  to  comply  with  requisitions, 
but  not  to  compel  contributions,  290;  sign  for  protection 
during,  290;  warning  necessary  if  military  situation  per- 
mits, 291. 

Bribery,  use  of  encouraged  in  Eastern  Koman  Empire, 
14;  inciting  to  treason  or  desertion  unlawful,  286. 

Brussels  Conference,  first  steps  towards,  101 ;  action  of  the 
Kussian  Government,  101;  attitude  of  the  British  Govern- 
ment, 102;  rules  adopted  by,  103;  organization  of,  103; 
attempt  to  limit  combatant  class,  104;  military  occupa- 
tion, 106;  contributions  and  requisitions,  106;  proposed 
revision  of  the  Geneva  Convention,  108;  notable  members 
of,  108;  adverse  report  of  British  delegate,  108;  non- 
ratification  of  the  Declaration  by  the  British  Govern- 
ment, 109;  approval  of  Declaration  by  Institute  of 
International  Law,  110;  appreciation  of,  111;  Hague 
Kegulations  based  on  Brussels  Declaration,  112. 

Bureaus  of  Information,  see  Prisoners  of  War. 

Burial  Places,  respect  for  urged  by  Grotius,  33. 

Bynkershoek,    life    and   work    of,    48. 

Capitulations,  faithful  observance  of  obligatory  among  Sara- 
cens, 13;  in  the  Eastern  Koman  Empire,  14;  powers 
of  a  commander  with  respect  to,  294;  property  not  to  be 
destroyed  between  signing  and  execution  of,  294. 

Children,  see  Noncombatants. 

China,  Boxer  uprising  in,  155. 

Chino-Japanese  War,  Chinese  resident  in  Japan,  117;  com- 
batants, 117;  taking  of  Port  Arthur,  118;  treatment  of 
the  dead,  119;  of  prisoners  of  war,  119;  of  private  prop- 
erty, 120;  administration  of  occupied  territory,  120;  con- 
duct of  the  Chinese,  121. 
Chivalry,  influence  of  on  war-practice,  6,  21. 


INDEX.  357 

References   are    to   pages. 

Civil  War,  instructions  for  the  government  of  the  armies  of  the 
United  States  in  the  field,  73;  their  importance,  74;  their 
defects,  74;  Confederate  act  of  sequestration,  75;  Federal 
confiscation  act  of  July  17,  1862;  the  captured  and 
abandoned  property  act,  76;  action  of  General  Sherman 
at  Atlanta,  77;  devastation  of  the  Shenandoah  Valley 
by  General  Sheridan,  77;  organization  of  the  Partisan 
Bangers  by  the  Confederate  authorities,  79 ;  their  aban- 
donment, 80;  the  "Fort  Pillow  Massacre,"  81;  treatment 
of  prisoners  of  war,  82;  de  facto  governments,  82;  the 
United  States  Sanitary  Commission,  83. 

Civil  Wars,  declarations  of  war  not  necessary  in,  10;  prisoners 
of  war  did  not  become  slaves  among  the  Eomans  in, 
10 ;  nor  among  the  Saracens,  13 ;  reasons  given  by  Montluc 
for  savagery  in,  30;  abounded  during  the  Eeformation,  30. 

Clergy,  see  Noncombatants. 

Codifications,  Saracenic  war-code,  12;  Dr.  Lieber's  Instruc- 
tions, 73;  Brussels  Declaration,  101;  Manual  of  Oxford, 
113;  governmental  manuals,  115;  notable  army  regula- 
tions, 116;  the  publication  of  the  German  staff,  116; 
Russian  regulations  of  July  14,   1904,   173. 

Combatants,  dislike  for  irregular  troops  in  the  time  of  Louis 
XIV,  46;  Lord  Chatham's  protest  against  the  employment 
of  Indian  allies,  51,  232;  organization  of  Partisan 
Rangers  by  the  Confederate  authorities,  79 ;  their  aban- 
donment, 80;  employment  of  Algerians  in  Franco-German 
War,  90;  the  franc-tireurs,  90;  attempts  to  define  at 
the  Brussels  Conference,  104;  excesses  of  irregular  troops 
in  Russo-Turkish  War  of  1877,  112;  the  Chino-Japanese 
War,  117;  use  of  natives  in  the  South  African  War, 
140;  combatant  character  of  Boers,  140;  threat  of  ban- 
ishment against  the  Boers,  153;  qualifications  prescribed 
by  Hague  Regulations,  228;  not  restrictive,  231;  orders 
from  headquarters  not  necessary,  231 ;  necessity  of  fixed 
emblem,  232 ;  H  I  applicable  to  both  occupied  and  unoc- 
cupied territory,  232;  levees  en  masse  in  unoccupied  ter- 
-  ritory,  232;  unsuccessful  uprisings  in  occupied  territory, 
233,  302;  temporarily  successful  uprisings,  234,  298; 
Declaration  of  Paris,  234;  conversion  of  merchantmen, 
235 ;  rights  of  noncommissioned  vessels,  236 ;  see  also  Non- 
combatants. 


358  INDEX. 

References    are    to    pages. 

Commencement  of  war,  treachery  in  commencing  hostilities 
illegal,  36,  157,  199;  treatment  of  Germans  in  France  at 
outbreak  of  Franco-German  War,  95;  Chinese  in  Japan 
in  Chino-Japanese  War,  117;  expulsion  of  Greeks  from 
Turkey  in  1897,  122;  treatment  of  resident  subjects  of 
enemy  power  in  South  African  War,  143;  in  Russo-Jap- 
anese War,  167;  effect  of,  on  legal  relations,  200;  on 
treaties,  201;  on  commercial  intercourse,  202;  treatment  of 
resident  citizens  of  other  billigerent,  203;  right  to  with- 
draw goods,  204;  confiscation  of  private  debts,  204,  284; 
status  of  enemy  merchant  ships,  205;  suspension  of  con- 
tracts, 208;  annulment  of  contracts,  208;  insurance  con- 
tracts, 209;  right  of  alien  enemy  to  sue,  209,  284;  licenses, 
210;  property  of  citizens  domiciled  in  enemy's  country  at, 
215;   see  also  Declarations   of   War. 

Concentration,  see  Noncombatants. 

Conquest,  moderation  in  urged  by  Grotius,  34;  effect  of  Revo- 
lutionary and   Napoleonic  Wars  on  doctrine  of,   52;  old 
doctrine  of,  52 ;  effect  of  doctrine  of  postliminium  on,  52 ; 
supplied  the  need  for  some  recognized  authority  in  occu- 
pied territory,  55;  resulted  in  change  of  allegiance  dur- 
ing  war,    55;   studies   of   Prof.    Lameire   on,    56;   causes 
that  led  to  the  abandonment  of  the  old  doctrine  of,  56; 
shattering  of  the  presumption  of  intention  to  appropriate 
unlimited  territory  by  the  French  Revolution,  57 ;  decision 
of  French  Court  of  Cassation  in   1818,  57;  case  of  the 
confiscation  of   debts  and   domains  of  Elector  of   Hesse- 
Cassel  by  Napoleon,  58;  old  doctrine  of  made  unnatural 
to  the  lay  mind  by  the  change  in  military  science  and  by 
the   growth    of   national   sentiment,    59;   changes   in    old 
doctrine    of    find    scientific    expression    in    the    work    of 
Heffter,  60;  survival  of  old  doctrine  of  in  dicta  of  the 
Supreme  Court,  60;  annexation  of  Boer  Republics,  144; 
proclamations  following   annexation,    145;   see   also   Mili- 
tary Occupation. 
Contributions,  change  to  from  pillage,  1,  42;  Marshal  Saxe's 
method  of  levying,  43;  during  the  Franco-German  War, 
96;  limitations  proposed  and  agreed  to  at  Brussels  Con- 
ference,  106,   314;   Hague  Regulations  on,   314,   317;   of 
less  importance  than  requisitions,  316;  receipts  for  need 
not  be  indemnities,  318;  see  also  Requisitions. 


INDEX. 


359 


References    are    to    pages. 

Cromwell,  Oliver,  refusal  to  give  quarter  at  Droghecla,  35. 

Cuban  Debt,  see  Spanish- American  War. 

Dana,  E.  H.,  argument  of  against  exemption  of  private  prop- 
erty at  sea  from  capture,  71. 

Dead,  treatment  of  in  Chino-Japanese  War,  119;  care  for, 
252;  examination  of,  252;  treatment  of  during  Russo- 
Japanese  War,   342. 

Debts,  see  Enemy  Property  and  Military  Occupation. 

Declaration  of  Paris,  articles  of,  65;  the  work  of  the  Congress 
of  Paris,  65;  changes  in  the  attitude  of  Great  Brit- 
ain, Q6;  position  taken  by  the  United  States  with  regard 
to,  67;  principles  of  likely  to  be  respected  even  by  non- 
signatory  powers,  67;  conversion  of  merchantmen  into 
warships  in  Eusso-Japanese  War,  170;  Hague  Convention 
supplementary  to,   188,  235. 

Declaration  of  St.  Petersburg,  suggested  by  proposed  use  of 
explosive  bullets  in  Eussian  army,  87;  work  of  the  Inter- 
national Military  Commission,  88;  text  of,  278;  mis- 
interpretation  of   preamble   of,   279. 

Declarations  of  War,  elaborate  among  the  Greeks  and  Eomans, 
8;  not  required  in  civil  wars,  10,  38;  in  private  warfare, 
16;  obligatory  in  Middle  Ages,  19;  letters  of  defiance, 
19;  heralds-at-arms  susperseded  by  permanent  embassies, 
19,  36;  necessity  of  demand  for  satisfaction  and  denial 
or  delay  of  justice,  36,  157,  199;  were  the  test  of  legal 
war  rather  than  warnings  to  the  enemy,  37 ;  not  necessary 
against  allies,  37;  influence  of  maritime  pretensions  and 
struggle  for  trade  and  territory  in  the  colonies  on  neces- 
sity of  prior,  38;  influence  of  grants  of  letters  of  marque 
and  reprisal  and  sequestrations  of  property  prior  to,  39; 
memories  of  the  old  rule  with  regard  to,  40;  not  a  prior 
requisite  to  hostilities  in  Lord  StowelPs  time,  41;  no 
special  form  for,  42;  had  not  become  a  prior  requisite 
at  outbreak  of  Eusso-Japanese  War,  156;  Hague  Conven- 
tion with  regard  to,  186,  198;  see  also  Commencement  of 
War. 

Devastation,  restrictions  on  laid  down  by  Victoria,  27;  by 
Grotius,  32;  of  the  Palatinate,  indignation  aroused  by, 
47;  rules  with  regard  to  said  by  de  Martens  to  have  been 
laid  down  by  Great  Britain  in  the  War  for  American  In- 


360  INDEX. 

References   are    to   pages. 

dependence,  50;  of  the  Shenandoah  Valley  by  General 
Sheridan,  77;  when  proper,  284. 

Eastern  Roman  Empire,  war-practice  of,  14. 

Embargo,  in  the  South  African  War,  142;  as  a  measure  of 
force  falling  short  of  war,  197. 

Enemy  Character,  liability  of  domiciled  neutrals  to  military 
service,  213;  attempt  to  place  neutral  in  a  more  favored 
position  at  Second  Peace  Conference,  213;  English  and 
French  rules,  215;  commercial  domicil,  215;  houses  of 
trade,  216;  of  occupied  territory,  218;  of  territory  in 
de  facto  possession  of  enemy,  219;  personal  unions,  219; 
allies,  219;  crews  of  merchant  ships,  222;  nationals  of 
hostile  party  not  to  be  compelled  to  participate  in  military 
operations  against  their  country,  285;  see  also  Enemy 
Property. 

Enemy  Property,  treatment  of  by  the  Romans,  9;  by  the 
Saracens,  13;  justification  of  seizure  of,  according  to 
Victoria,  27 ;  rights  over,  according  to  Grotius,  33 ;  seques- 
tration of  debts  by  the  Confederate  States,  75;  treatment 
of  in  Chino-Japanese  War,  120;  confiscation  of  private 
debts,  204,  284;  neutral  property  identified  with  bel- 
ligerent territory,  212;  neutral  railway  material,  212; 
right  of  angary,  213;  goods  of  citizens  domiciled  in 
enemy's  country  at  outbreak  of  war,  215;  products  of 
enemy  soil  and  ships  flying  his  flag,  216;  transfers  of 
property  in  transitu,  217;  ownership  of  consigned  goods 
and  nonrecognition  of  liens,  217;  transfers  of  ships  during 
war,  218;  importance  of  old  prize  rules  lessened  by  mod- 
ern conditions,  220;  old  rules  as  to  when  title  vested, 
223;  later  rules  as  to  condemnation  by  prize  court,  223; 
international  significance  of  these  rules,  224;  what  nec- 
essary to  constitute  capture,  225;  desirability  of  adjudica- 
tion, 225;  prizes  in  neutral  ports,  225;  destruction  of 
captured  ship,  226;  ransom,  227;  not  to  be  confiscated, 
310;  property  of  localities,  churches,  etc.,  treated  as 
private  property,  333. 

English  War-Practice,  more  advanced  than  on  the  continent 
in  the  Middle  Ages,  22;  under  Edward  III,  23; 
under  Henry  V,  23;  during  the  War  for  American 
Independence,  50;  during  the  War  of  1812,  62;  see  also 
South  African  War. 


INDEX.  361 

References    are    to    pages. 

Envoys,  see  Noncombatants. 

Expanding  Bullets,   see  Projectiles. 

Explosive  and  Inflammable  Bullets,  see  Projectiles  and  Dec- 
laration of  St.  Petersburg. 

First  Peace  Conference,  Russian  proposal,  128;  subjects  for 
consideration,  128;  powers  represented,  129;  organization 
of,  129;  powders,  shells,  explosives  and  field  guns,  130; 
throwing  of  projectiles  from  balloons,  130;  muskets,  131; 
expanding  bullets,  132;  position  of  the  British  Govern- 
ment, 132;  of  the  United  States,  132;  objections  of  Capt. 
Crozier,  133;  work  of  the  naval  subcommittee,  133; 
prohibition  of  projectiles  for  spreading  asphyxiating  gases, 
134;  naval  Eed  Cross  convention,  135;  regulation  of  the 
laws  and  customs  of  war  on  land,  135;  men  of  special 
distinction,  136;  declaration  of  the  United  States  as  to 
exemption  of  private  property  at  sea,  136;  final  act,  136; 
appreciation  of  work  of,  137. 

Fishermen,  agreement  between  Francis  I  and  Chas.  V,  exempt- 
ing them  from  molestation,  30;  decision  of  Supreme 
Court  on  exemption  of  fishing-vessels  from  capture,  124 ; 
Hague  Convention  as  to  exemption  of  fishing  vessels,  190, 
221;  see  also  Noncombatants. 

Flags  of  Truce,  bearers  of  inviolable  in  Eastern  Roman 
Empire,  14;  improper  use  of,  forbidden,  283,  293; 
declarations  not  to  receive  for  fixed  period,  disapproved 
of,  293;  bearer  of  may  be  blindfolded,  293;  circumstances 
under  which  bearer  of  loses  his  inviolability,  294. 

Floating  mines,  in  the  Russo-Japanese  War,  170;  convention 
of  Second  Peace  Conference  on,   187,   280. 

Forests,  cutting  of  trees  prohibited  by  Saracens,  12;  treat- 
ment by  the  Germans  of  French,  96;  officials  charged 
with  care  of,  308;  rights  of  military  occupant  over,  329. 

Forfeitures,  in  the  South  African  War,  142. 

"Fort   Pillow  Massacre/'  account  of,   81. 

Franc-tireurs,  see  Combatants. 

Franco-German  War,  importance  of  in  development  of  laws 
of  war,  89;  bombardment  of  towns,  89;  employment  of 
savage  troops,  90;  franc-tireurs,  90;  the  charge  of  ficti- 
tious occupation  not  proved,  92 ;  measures  taken  to  pre- 
vent escape  of  inhabitants  intending  to  join  French  army, 
93,  95,  303 ;  burning  of  houses,  94 ;  use  of  socalled  hostages 


362  INDEX. 

References   are    to    pages. 

on  trains,  94;  trials  for  military  offenses,  94;  residents  at 
outbreak  of  war,  95;  balloonists,  96;  contributions  and 
requisitions,  96;  treatment  of  French  forests,  96;  private 
property  at  sea,  97;  prisoners  of  war,  98;  administration  of 
occupied  territory,  98;  levying  of  taxes  during,  313; 
credit  given  by  French  Government  for  payment  of  taxes 
to   Germans  during,   313. 

Franklin,  Benjamin,  views  of  on  privateering  and  exemption 
of  private  property  at  sea  from  capture,  68 ;  article  pro- 
posed by  him  for  Treaty  of  Peace  of  1783,  69. 

Free  Ships,  Free  Goods,  Declaration  of  Paris  established  prin- 
ciple of,  65;  abandonment  of  traditional  English  position 
as  to,  66;  see  also  Private  Property  at  Sea. 

Geneva  Conventions,  first  suggestions  of  the  convention  of 
1864,  84;  the  conference  of  1863,  84;  the  international 
congress  and  the  convention  of  1864,  85;  reception  of 
the  convention,  86;  additional  articles  of  1868,  86;  ob- 
servance of  during  Franco-German  War,  89 ;  proposed 
revision  of  convention  of  1864  at  Brussels  Conference, 
108 ;  trouble  over  the  Eed  Cross  in  the  Eusso-Turkish  War 
of  1877,  112;  naval  convention,  135;  desire  expressed 
by  First  Peace  Conference  for  revision  of  convention  of 
1864,  136;  steps  towards  revision,  175;  the  conference  of 
1906,  176 ;  preliminary  work  of  Red  Cross  Societies  and 
Institute  of  International  Law,  177;  organization  of  con- 
ference, 178;  merits  of  the  convention  of  1906,  180;  naval 
convention  of  1907,  188;  application  and  execution  of, 
266,  276;  repression  of  abuses  and  infractions.  266,  277; 
landing  parties  are  subject  to  land  convention,  277;  see 
also  Sick,  Wounded  and  Shipwrecked. 

Gentilis,  Albericus,  life  and  work  of,  27. 

German  Staff,  publication  of,  116. 

Germanic  Migrations,  war-practice  during,  11. 

Graeco-Turkish  War  of  1897,  attention  paid  by  Turkish  au- 
thorities to  modern  standards,  121;  expulsion  of  Greeks 
from  Turkey,  122. 

Greek  war-practice,  8. 

Grotius,  early  life  of,  28 ;  advocacy  of  the  freedom  of  the 
seas,  28 ;  exile  of,  29 ;  his  last  years,  29 ;  greatness  of, 
29;  reasons  for  writing  on  the  law  of  war,  30;  distinction 
between  law   of  nature   and  nations,   31;   carefulness  in 


INDEX.  363 

References   are    to    pages. 

not  claiming  for  his  own  opinions  the  force  of  instituted 
law,  31;  opinion  of  on  rights  over  noncombatants,  32; 
on  limits  to  ravaging,  32 ;  on  right  of  acquiring  enemy 
property,  32;  on  ransom,  34;  on  conquests,  34;  influence 
of  his  work,  34;  on  the  purpose  of  declarations  of  war, 
37;  declarations  not  necessary  against  allies,  37. 

Guerrillas,  see  Combatants. 

Guides,  right  of  occupant  to  make  inhabitants  serve  as,  310. 

Gustavus  Adolphus,  admiration  of  for  Grotius,  2,  34; 
high  standard  of  war-practice  of,  35;  seizure  of  library 
by  as  a  measure  of  reprisal,  62. 

Hague  Regulations,  based  on  the  Brussels  declaration,  112; 
adoption  at  First  Peace  Conference,  135;  amendments 
at  Second  Peace  Conference,  185;  sanction,  333;  con- 
vention embodying,  345. 

Heffter,  first  scientific  expression  of  modern  doctrine  of  Mili- 
tary Occupation  in  work  of,  60. 

Hindus,  war-practice  among,  8. 

Hostages,  killing  of  for  defalcations  of  principals  in  Middle 
Ages,  21 ;  opinion  of  Victoria  against  putting  them  to 
death,  27;  use  on  trains  of  socalled,  94,  151,  305. 

Husbandmen,  see  Noncombatants. 

Insane,  see  Noncombatants. 

Institute  of  International  Law,  organization  and  purpose  of, 
100;  approval  of  work  of  Brussels  Conference  by,  110; 
Manual  of  Oxford  of,  113;  efforts  of  towards  revision 
of  Geneva  Convention,  177;  rules  of  for  destruction  of 
captured  ships,  226. 

Insurance,  contracts  of  against  government  of  insurer,  void, 
209. 

Intra  Praesidia,  Eoman  doctrine  of  as  applied  to  prisoners  of 
war,  9;  developed  by  early  writers,  9;  as  a  part  of  the 
law  of  conquest,  52 ;  as  applied  to  the  capture  of  ships, 
223,  224. 

Italian  war-practice,  mildness  of,  24;  Machiavelli  on,  24. 

Laborers,  see  Noncombatants. 

Law  of  War,  necessity  of  resorting  to  fundamental  principles 
on,  1;  the  avoidance  of  useless  injury,  2,  31;  the  theory 
that  war  is  a  relation  between  governments,  2;  advantages 
thereof,  2,  105,  229,  319;  the  statement  of  Rousseau  a 
rough  generalization  of  the  practice  of  his  time,  3,  47; 


364  INDEX. 

References   are    to   pages. 

change  in  the  character  of  wars  since  Rousseau,  3,  50; 
reasons  against  admission  of  above  theory,  3,  71,  78,  105, 
107,  115,  318,  319;  possible  danger  to  national  existence, 
4;  value  in  theory,  5;  German  doctrine  of  necessity,  5; 
general  influences  on,  6;  Dana  on,  71;  Generals  Sheridan 
and  Sherman  on,  78;  Von  Moltke  on,  113;  progressive 
character  of,  124. 

Libraries,  see  Art  Treasures. 

Licenses,  now  generally  obsolete  or  local,  210;  rules  with 
regard  to,  211. 

Lieber,  Francis,  preparation  of  the  instructions  for  the  armies 
of  the  United  States  in  the  field,  73. 

Lueder,  work  of  on  the  revision  of  the  Geneva  Convention, 
175. 

Manual  of  Oxford,  the  work  of  the  Institute  of  International 
Law,  113;  letter  of  Von  Moltke  inspired  by,  113. 

Marcy,  Wm.  L.,  attitude  towards  the  Declaration  of  Paris, 
67. 

Mariners   Shipwrecked,   see  Noncombatants. 

Mark,  letters  of,  see  Marque  and  Reprisal. 

Marque  and  Reprisal,  letters  of,  early  confusion  in  termi- 
nology, 18;  issuance  of  prior  to  declarations  of  war,  a 
determining  factor  in  making  prior  declarations  unneces- 
sary, 39;  done  away  with  by  the  Declaration  of  Paris, 
41,  65,  197. 

Martial  Law,  prevention  of  escape  of  persons  intending  to  join 
the  French  army  by  the  Germans,  93,  95;  the  burning  of 
houses  and  villages  by  the  Germans,  94;  placing  of  no- 
tables on  trains,  94,  151;  trials  for  offenses  against,  94; 
punishment  for  breach  of  neutrality  oath  in  South  African 
War,  147 ;  burning  of  farms,  148 ;  collective  responsibil- 
ity, 151,  316;  extraordinary  proclamation  during  Russo- 
Japanese  War,  171;  notice  to  the  inhabitants,  301;  of- 
fenses arising  from  noncombatant  character  of  offenders, 
301;  acts  of  violence,  302;  unsuccessful  uprisings,  302; 
acts,  not  violative  of  the  laws  of  war,  but  injurious  to 
the  occupant,  302 ;  delivery  up  of  arms,  303 ;  joining  the 
national  army,  303 ;  penalties  of,  304,  305 ;  use  of  hostages 
on  trains,  305;  vicarious  punishment,  305;  reprisals,  305; 
fines,  317. 

Merchant  Ships,  in  port,  etc.,  at  outbreak  of  Spanish-Ameri- 


INDEX.  365 

References    are    to    pages. 

can  War,  123;  days  of  grace  allowed  in  Russo-Japanese 
War,  16G;  sinking  of  Japanese,  168;  conversion  of  into 
warships  in  Russo-Japanese  War,  170;  convention  on  con- 
version of,  188,  235 ;  convention  on  status  of  at  outbreak 
of  hostilities,  190,  205;  enemy  character  of,  flying  enemy 
flag,   216;   transfer   of   during  war,   218. 

Merchants,  see  Noncombatants. 

Middle  Ages,  lawlessness  of,  14;  private  wars,  14;  early  checks 
by  the  temporal  powers,  15;  checks  by  the  church,  16; 
overthrow  by  the  rising  power  of  the  state,  16;  reprisals, 
17;  approach  the  character  of  ordinary  judicial  proceed- 
ings, 17;  did  not  break  the  peace,  18;  confusion  in  termi- 
nology, 18 ;  declaration  of  war,  19 ;  dying  out  of  the 
enslavement  of  prisoners  of  war,  19 ;  substitution  of  ran- 
som, 20 ;  development  of  chivalry,  21 ;  prohibition  of  cer- 
tain weapons  and  the  exemption  of  noncombatants,  21; 
dark  side  of  medieval  warfare,  22;  practice  in  the  English 
armies,  22;  war-practice  of  the  Swiss  and  Italians,  24; 
war-practice  at  sea,  24. 

Military  Occupation,  questions  arising  under,  formerly  treated 
under  conquest,  52;  causes  that  lead  to  the  modern  doc- 
trine of,  56;  intention  to  appropriate  unlimited  territory 
shattered  by  the  French  Eevolution,  57;  French  and 
G-erman  decisions,  57 ;  change  in  military  science,  59 ; 
growth  of  national  sentiment,  59 ;  scientific  expression  of 
modern  doctrine  of,  in  the  work  of  Heffter,  60;  survival 
of  obsolete  doctrines  in  dicta  of  the  Supreme  Court,  60; 
the  Supreme  Court  on  de  facto  governments,  82 ;  flying 
columns  in  the  Franco-German  War,  92 ;  administration 
during  Franco-German  War,  98;  treatment  of,  at  Brus- 
sels Conference,  106 ;  in  the  Chino-Japanese  War,  120 ; 
must  be  effective,  297;  how  far  analogous  to  blockade, 
297 ;  beginning  and  end  of,  298 ;  authority  of  occupant, 
298 ;  duty  of  occupant  to  preserve  social  order.  299,  301 ; 
conflicting  views  of  duty  of  inhabitants  towards  occupant, 
300;  civil  and  penal  laws  not  to  be  changed  during, 
300;  article  of  Brussel  Declaration  on  continuance  of 
officials  under,  306 ;  opposition  of  Dutch  and  Belgian  del- 
egates, 306;  officials  may  resign,  307;  political  officials 
necessarily  discontinue  their  functions,  307;  local  officials 
under  a  duty  not  to,  307 ;  tax  officials,  308 ;  forest  officials, 


366  INDEX. 

References    are    to    pages. 

308;  postal,  railroad  and  telegraph  officials,  307;  officials 
in  charge  of  museums,  etc.,  309;  oath  of  fidelity  may  be 
required  of  officials,  but  no  duty  inconsistent  with  al- 
legiance, 309;  right  to  compel  inhabitants  to  act  as  guides, 
310;  no  oath  of  allegiance  to  be  required,  310;  respect  for 
family  life  and  private  property,  310;  right  of  occupant 
to  other  than  local  taxes,  312;  methods  of  enforcing 
collection  of  taxes,  313;  appropriation  of  movable  pub- 
lic property,  323;  public  debts,  324;  private  means  of 
transportation  and  communication,  325;  munitions  of 
war,  326;  ships  not  coming  under  the  rules  of  naval 
war,  327;  submarine  cables,  328;  contracts  of  exploitation 
during,  328 ;  administrative  contracts,  329 ;  see  also  Con- 
quest. 

Military  service,  liability  of  foreign  residents  to,  143,  213. 

Mohammedans,  see  Saracens. 

Moors,  war-practice  of,  more  severe  than  that  of  the  Saracens, 
14. 

Moynier,  M.  G-ustave,  work  of,  in  connection  with  the  Geneva 
Convention,  84;  on  the  revision  of  the  convention  of 
1864,   176. 

Napoleon,  confiscation  of  debts  and  domains  of  Elector  of 
Hesse-Cassel  by,  58 ;  seizure  of  art  treasures  by,  61 ;  heavy 
burden  of  the  armies  of,  62. 

Necessity,  German  doctrine  of,  5. 

Noncombatants,  inviolability  of  husbandmen  among  the  ancient 
Hindus,  8;  acts  of  violence  against  women  and  children 
denounced  among  the  Greeks  and  Eomans,  8;  killing  of 
women,  children  and  insane  prohibited  by  Saracens,  12; 
women  and  children  became  immediate  property  of  captors 
under  Mussulman  law,  13;  mishandling  of  women  forbid- 
den in  Eastern  Roman  Empire,  14;  priests,  monks,  lay 
brothers,  pilgrims,  merchants,  laborers  and  beasts  of  bur- 
den not  to  suffer  violence  in  private  warfare,  16;  women, 
clergy,  students,  envoys,  pilgrims,  witnesses,  merchants 
on  their  way  to  a  fair,  and  shipwrecked  mariners,  not 
the  subject  of  reprisals,  18;  church  decree  against  in- 
jury to,  in  Middle  Ages,  somewhat  of  a  dead  letter,  22 ; 
Victoria  on  rights  against,  27;  Grotius  on  rights  against, 
32;  concentration  camps  in  South  Africa,  151;  their 
justification  by  Lord  Kitchener,  152;  their  conduct,  153; 


INDEX.  i  367 

References    are    to    pages. 

establishment  of  zones  of  refuge  in  the  Philippines,  155; 
respect  for,  required  by  Hague  Eegulations,  310;  see  also 
Martial  Law. 

Obstinate  Resistance,  little  mercy  shown  to  those  guilty  of, 
in  Middle  Ages,  22;  not  sufficient  to  give  right  to  kill, 
according  to  Grotius,  32;  as  an  excuse  for  the  killing  of 
the  Chinese  at  Port  Arthur,  118. 

Officials,  see  Military  Occupation. 

Opening  of  Hostilities,  see  Declarations  of  War  and  Commence- 
ment of  War. 

Ornamental   Works,   see  Art   Treasures. 

Pacific  Blockades,  practice  with  regard  to,  197. 

Palmerston,  Lord,  attitude  towards  exemption  of  private  prop- 
erty at  sea  from  capture  in  1856,  67 ;  in  1862.  71. 

Parole,  see  Prisoners  of  War. 

Persians,   early  war-practice   of,   8. 

Philippines,  war  in  the,  155;  establishment  of  zones  of  refuge, 
155. 

Pilgrims,  see  Noncombatants. 

Pillage,  change  from  to  contributions,  1,  42;  followed  a  suc- 
cessful assault  in  Greece  and  Pome,  8;  in  the  Middle 
Ages,  22;  storming  of  cities  condemned  by  Grotius,  33; 
forbidden  even  when  place  is  taken  by  assault,  291, 
311. 

Poison,  use  of,  inconceivable  today,  6;  prohibition  of  its  use 
in  wells  and  water  courses  by  the  Saracens,  12;  prohibi- 
tion of  its  use  by  Hague  Eegulations,  282. 

Port  Arthur,  see  Chino- Japanese  and  Russo-Japanese  Wars. 

Postal  correspondence,  exemption  of,  from  capture,  221. 

Postliminium,  Law  of,  origin  in  Eoman  Law,  10;  application 
of,  by  early  writers,  11;  effect  of,  on  doctrine  of  con- 
quest, 52;  distinguished  from  doctrine  of  recapture,  224. 

Powders,  see  Projectiles. 

Prisoners  of  War,  made  slaves  in  Greece  and  Rome,  8; 
also  released  on  parole  and  ransomed,  8;  doctrine  of  intra 
praesidia,  9;  did  not  become  slaves  in  civil  war,  10; 
effect  of  capture  of  a  Eoman  citizen  and  of  his  return  to 
his  own  country,  10;  the  law  of  reverter  or  postliminium, 
10;  mutilation  of  without  orders,  forbidden  by  Saracens, 
12 ;  women  and  minors  became  immediate  property  of 
captors,  13;  adult  male  prisoners,  sent  back,  released  on 


368  INDEX. 

References   are    to   pages. 

ransom,  exchanged,  or  made  slaves,  13;  dying  out  of  the 
enslavement  of,  19;  by  the  time  of  Grotius,  20;  substitu- 
tion of  ransom,  20;  enslavement  of,  considered  illegal 
by  Victoria,  27;  ransom  succeeded  by  exchange,  30,  46; 
rules  laid  down  by  Grotius  for  determining  ransom,  34; 
confinement  of,  in  prison  ships,  during  war  for  American 
Independence,  51;  treatment  of  during  Civil  War,  82; 
during  the  Franco-German  War,  98;  treatment  of,  in 
Chino-Japanese  War,  119;  use  of  violence  towards,  237; 
private  property  of,  238;  no  ignominy  attaching  to  con- 
dition of,  238,  239;  labor  of,  not  to  involve  participation 
in  military  operations  against  country,  240;  practice  as 
to  deducting  cost  of  maintenance  from  earnings,  240; 
duty  to  care  for,  241 ;  penal  power  over,  241 ;  misrepre- 
sentation of  rank,  242;  parole,  243;  not  compulsory,  244; 
trials,  244;  persons  attached  to,  but  not  a  part  of  army, 
244;  inquiry  office,  245;  relief  societies,  246;  relaxation 
of  charges  on  letters  and  parcels,  246;  pay  of  officers, 
246;  religious  liberty,  247;  wills,  247;  repatriation  of, 
247;  peace  and  amnesty,  247;  exchange,  247;  sick, 
wounded  and  shipwrecked  falling  into  power  of  enemy 
are,  250;  see  also  Russo-Japanese  War. 
Private  Property  at  Sea,  capture  of,  still  considered  a  means 
of  bringing  pressure  to  bear  on  governments,  3,  71; 
change  in  the  attitude  of  Great  Britain  towards  doctrine 
of  free  ships,  free  goods,  based  on  belief  that  capture 
of,  might  be  done  away  with  altogether,  66;  position 
taken  by  the  United  States  with  regard  to,  in  connec- 
tion with  the  Declaration  of  Paris,  67;  early  efforts  for 
exemption,  68 ;  views  of  Franklin,  68 ;  article  proposed 
by  Franklin  for  the  Treaty  of  Peace  of  1783,  69; 
its  embodiment  in  the  Treaty  of  1785  with  Prussia, 
70;  attitude  of  the  United  States,  71;  Dana's  argument 
against  exemption  of,  from  capture,  71;  hope  for  ex- 
emption lies  in  practice  rather  than  in  agreement,  72; 
during  the  Franco-German  War,  97;  in  the  Chino-Jap- 
anese War,  121;  declaration  of  the  United  States  at 
First  Peace  Conference,  wish  of  the  Conference,  136,  137; 
effort  made  for  exemption  at  Second  Peace  Conference, 
188;  restrictions  on  right  of  capture  of,  190,  220;  postal 


INDEX.  369 

References   are    to    pages. 

correspondence,  221;  fishing  vessels  and  small  boats  en- 
gaged in  trade,  124,  221;  personal  effects,  223. 

Private  Wars,  prevalence  of,  in  Middle  Ages,  14;  early  checks 
on,  by  the  temporal  powers,  15;  the  delay  of  forty  days 
before  attacking  relatives,  15;  requirement  of  a  warning 
by  Alphonse  VII,  of  Castile,  and  Frederick  Barbarossa, 
16;  checks  by  the  church,  16;  the  Truce  of  God,  16; 
the  Brotherhood  of  God,  16;  overthrow  of,  by  the  rising 
power  of  the  state,  16;  survived  longest  in  Poland  and 
Scotland,  17. 

Privateering,  abolished  by  the  Declaration  of  Paris,  65,  234; 
"policy"  of  United  States  not  to  resort  to,  in  Spanish- 
American  War,  123;  conversion  of  merchantmen,  170, 
188,  235. 

Projectiles,  incendiary,  prohibition  of,  by  Saracens,  12;  ma- 
chines for  throwing,  interdicted  by  Innocent  III,  22; 
prejudice  against  firearms  in  Middle  Ages,  22;  explosive 
and  inflammable  bullets  prohibited  by  Declaration  of 
St.  Petersburg,  87;  charges  of  use  of  explosive  bullets 
in  Franco-German  WTar,  89;  attempted  limitations  as  to 
powders,  explosives  and  shells  at  the  First  Peace  Con- 
ference, 130;  throwing  of,  from  balloons  prohibited,  130, 
187,  279,  350 ;  expanding  bullets,  132,  179 ;  for  spreading 
asphyxiating  gases,  134,  279;  expanding  bullets  in  the 
South  African  War,  138;  causing  unnecessary  suffering 
prohibited,  283;  see  also  Balloons. 

Public  Archives,   see  Art   Treasures. 

Pufendorf,  Samuel,  life  and  work  of,  35. 

Punitive  Expedition,  against  China,   155. 

Quarter,  refused  by  Cromwell  at  Drogheda,  35;  decree  of  the 
convention  against,  not  obeyed,  62;  "Fort  Pillow  Mas- 
sacre," 81;  taking  of  Port  Arthur,  118;  Boxer  uprising 
in  China,  155;  even  to  those  who  have  violated  laws  of 
war,  282 ;  declarations  of  "no  quarter,"  prohibited  by 
Hague    Eegulations,    283. 

Ransom,  see  Prisoners  of  War  and  Enemy  Property. 

Ravaging,  see  Devastation. 

Red  Crescent,  see  Geneva  Conventions. 

Red  Cross,  see  Geneva  Conventions  and  SicJc,  Wounded  and 
Shipwrecked. 

Red    Cross   Societies,   the   creation    of,    decided   upon    at  the 
23 


3  TO  INDEX. 

References    are    to    pages. 

Geneva  Conference  of  1863,  84;  nonrecognition  of,  in 
convention  of  1864,  85;  recognition  of,  in  subsequent 
conventions,  85,  257,  268;  preliminary  work  of,  on  the 
revision  of  the  Geneva  Convention  of  1864,  177;  function 
of,  in  case  of  flood,  fires,  earthquakes,  etc.,  257;  field 
of  activity  generally  confined  to  second  line,  258;  neutral, 
258;  materiel  of,   261;  hospital  ships  equipped  by,   268. 

Eeligious  Establishments,  respect  for,  urged  by  Grotius,  33 ; 
protected  by  Hague  Eegulations,  330. 

Renaissance,  marked  by  output  of  works  on  the  law  of  war, 
26. 

Renault,  M.,  importance  of,  at  Second  Peace  Conference, 
193. 

Reprisals,  prevalence  of,  in  Middle  Ages,  17;  approach  the 
character  of  ordinary  legal  proceedings,  17 ;  exemption 
of  noncombatants  from,  18;  did  not  break  the  peace,  18; 
distinction  between  Special  and  General  Reprisals,  18; 
confusion  in  terminology,  18;  issuance  of  General  Letters 
by  Charles  II  prior  to  a  declaration  of  war,  39 ;  remark 
of  De  Witt  on,  39 ;  see  Marque  and  Reprisal,  Letters  of. 

Reprisals  in  "War,  regulation  of,  omitted  from  Brussels  Decla- 
ration, 109;  included  in  Manual  of  Oxford,  113;  rules 
as  to,   305. 

Requisitions,  older  than  Washington,  46;  heavy  burden  of, 
under  Napoleon,  62;  not  suitable  to  conditions  in  Geor- 
gia in  the  Civil  War,  77;  during  the  Franco-German 
War,  96;  limitations  proposed  and  agreed  to  at  Brussels 
Conference,  106;  in  the  Chino-Japanese  War,  120;  ec- 
clesiastical establishments  not  necessarily  free  from,  311; 
regulations  as  to  orders  authorizing,  318;  desirability  of 
cash  payments  for,  319 ;  must  not  involve  services  contrary 
to  allegiance,  319;  must  be  in  proportion  to  resources 
of  country,  319;  personal  services  subject  to,  320;  prop- 
erty subject  to,  320;  sheltering  of  troops,  320;  quartering 
in  churches,  321;  food  supplies,  321;  boarding,  322; 
importance  of,  322;  military  execution,  323;  see  also 
Contributions. 

Roman  Church,  those  recognizing  its  authority  considered  as 
successors  of  the  Roman  people  in  the  Middle  Ages,  10 ; 
the  one  institution  standing  for  law  and  order  in  the  dark 
period   of   the   Middle   Ages,    14;   see   also   Middle   Ages. 


INDEX.  371 

References    are    to    pages. 

Roman  Law,  few  precepts  of,  on  war-practice,  made  much  of 
by  early  writers,  8;  acquisition  of  property  in  war  ac- 
cording to,  9;  status  of  prisoners  of  war  by,  10;  rules 
as  to  postliminium,  10. 

Rome,    early    war-practice    of,    8 ;    later   war-practice   of,    11. 

Rousseau,  statement  of,  on  the  war-practice  of  his  time,  3,  47. 

Ruses,  in  the  Eastern  Roman  Empire,  14;  improper,  forbidden, 
283;  use  of  uniform  of  enemy  for  approach,  283;  inciting 
to  treason  or  desertion  unlawful,  286;  not  in  themselves 
improper,    286. 

Russo-Japanese  War,  outbreak  of  hostilities,  156 ;  diplomatic 
events  leading  up  to,  157;  military  and  naval  events, 
158;  Port  Arthur,  158;  Chemulpo,  159;  charges  made 
by  Russian  Government,  160;  the  breaking  off  of  dip- 
lomatic relations,  161;  charges  of  treacherous  interfer- 
ence with  telegraph  service,  162;  days  of  grace,  166; 
Russians  resident  in  Japan,  167 ;  Japanese  resident  in 
Russian  territory,  168;  sinking  of  Japanese  merchantmen, 
168 ;  threat  to  treat  wireless  operators  as  spies,  169 ; 
floating  mines,  170;  conversion  of  merchantmen,  170; 
care  for  the  sick  and  wounded,  172 ;  Russian  and  Japanese 
Regulations,  173;  information  bureau,  332;  regulations 
as  to  prisoners  of  war,  334,  335;  statistics  as  to  prisoners, 
335;  nourishment  of  prisoners,  336;  allowances,  337; 
places  of  internment,  337;  reading  matter,  337;  postal 
service,  338 ;  penal  law,  339 ;  employment,  340 ;  free 
promenade  and  residence  in  private  houses,  340;  treat- 
ment of  Russian  sanitary  personnel,  342;  gifts  and  relief 
in  kind,  342 ;  care  for  the  dead,  342 ;  instructions  to 
reconcile  differences  in  treatment  of  prisoners,  343; 
repatriation  of  prisoners,  343. 

Russo-Turkish  War  of  1877,  trouble  over  the  Red  Cross,  112; 
irregularities,  112. 

Saracens,  warrcode  of,  12 ;  the  waging  of  war  a  religious  duty, 
12 ;  precepts  of  kindness  and  chivalry,  12 ;  treatment  of 
prisoners  of  war,  13;  of  enemy  property,  13;  compara- 
tively mild  treatment  of  unorthodox  Mussulmans,  13; 
actual  practice  among  the  Mohammedans  not  uniform, 
13. 
Second  Peace  Conference,  convocation  of,  181;  organization 
and  rules  of,  182;  division  of  work  among  commissions, 


372  INDEX. 

References    are    to    pages. 

183;  signing  of  Final  Act,  184;  work  of,  184;  laws 
and  customs  of  war  on  land,  185;  opening  of  hostilities, 
186 ;  discharging  projectiles  from  balloons,  187 ;  bom- 
bardment by  naval  forces,  187 ;  automatic  submarine 
contact  mines,  187;  naval  Red  Cross  convention,  188; 
conversion  of  merchantmen,  188 ;  effort  for  exemption  of 
private  property  at  sea,  188 ;  special  restrictions  on  the 
right  of  capture,  190;  status  of  enemy  ships  at  outbreak 
of  hostilities,  190;  formal  parts  of  conventions,  190; 
Final  Act,  192;  wish  for  a  Third  Peace  Conference,  192; 
signatories,    193 ;   appreciation,    193. 

Shells,   see  Projectiles. 

Sheridan,  General  Philip  H.,  devastation  of  the  Shenandoah 
Valley  by,  77;  on  the  fundamental  principles  of  the  law 
of  war,   78. 

Sherman,  General  Wm.  T.,  action  of,  at  Atlanta,  77;  on  the 
nature  of  the  Civil  War,  78. 

Sick,  Wounded  and  Shipwrecked,  increased  care  for,  in  period 
of  Louis  XIV,  46;  United  States  Sanitary  Commission 
during  the  Civil  AVar,  83;  care  for  in  Chino-Japanese 
War,  119;  in  the  Graeco-Turkish  War  of  1897,  121;  in  the 
South  African  War,  141;  in  the  Russo-Japanese  War, 
172 ;  unsuccessful  belligerent  to  leave  material  behind, 
249 ;  on  falling  into  power  of  enemy  are  prisoners  of  war, 
250,  275;  authority  to  enter  into  stipulations,  250,  276; 
policing  the  field  of  battle,  252,  276;  examination  of  the 
dead,  252,  276 ;  appeal  to  charity,  253,  271 ;  civil  hospitals, 
254;  respect  due  to  movable  sanitary  formations,  254; 
protection  conditioned  on  nonbelligerent  action,  255  269; 
sanitary  formation  may  be  defended,  256,  271 ;  detail 
of  personnel  left  to  governments,  256;  distinction  between 
sanitary  personnel  and  those  temporarily  aiding,  257; 
volunteer  aid  societies,  257;  neutral  societies,  258;  duty 
of  personnel  to  remain,  but  obligation  to  send  them  back 
when  no  longer  indispensable,  259,  271;  personnel  to 
receive  pay  in  force  in  captor's  army,  260;  composi- 
tion of  movable  sanitary  formations,  260;  fixed  establish- 
ments, 261;  materiel  of  aid  societies,  261;  convoys,  262; 
military  vehicles  temporarily  used  for,  263;  "heraldic" 
sign  of  the  Red  Cross,  263,  270;  sign  for  means  of  trans- 
portation,  263;   personnel   entitled   to   arm   badges,   264; 


INDEX.  373 

References    are    to    pages. 

certificates  of  identity,  264;  flags  for  belligerent  forma- 
tions, 265;  for  neutral  formations,  265;  military  hospital 
ships,  267;  private  and  neutral  hospital  ships,  268; 
control  over  hospital  ships,  269;  sick  wards,  270;  right 
to  demand  those  rescued  by  merchantmen,  272;  by  war- 
ships, 273;  landing  of,  at  a  neutral  port,  275;  see  also 
Geneva  Conventions. 

Soto,   Dominicus,   life   and  work   of,   26. 

South  African  War,  expanding  bullets,  138;  use  of  natives 
as  soldiers,  140;  combatant  character  of  Boers,  140; 
forfeitures  and  alienations,  142;  commandeering  of  Brit- 
ish subjects,  143;  treatment  of  resident  subjects  of  the 
enemy,  143;  annexation  of  the  Boer  Eepublics,  144; 
proclamations  following  annexation,  145;  the  oath  of 
neutrality,  146;  burning  of  farms,  148;  maintenance  of 
lines  of  communications,  149 ;  use  of  notables  on  trains, 
151;  collective  responsibility,  151;  concentration  camps, 
151;   banishment  proclamation,   153. 

Spanish-American   War,   largely  maritime   in  character,    123 
neutral   ships   allowed   to   clear   for   Spanish   ports,   124 
case  of  the  Paquete  Habana,  124;  the  Cuban  debt,  125 
payment   by   Spain   of   interest   accruing   during  war   on 
treaty  obligations,  127. 

Spies,  hanging  of  Andre,  51 ;  threat  by  Bismarck  to  treat  bal- 
loonists  as,  96;  threat  to  treat  wireless  operators  as,  in 
Eusso-Japanese  War,  169;  defined  by  H  XXIX,  291; 
balloonists  not,  292;  entitled  to  trial,  292;  not  liable  to 
punishment  for  successful  attempt,  292. 

Students,   see  Noncombatants. 

Submarine  Cables,  seizure  and  destruction  of,  328. 

Swiss  War-practice,  in  the  Middle   Ages,  24. 

Taxes,  see  Military  Occupation. 

Termination  of  War,  rules  as  to,  247,  331. 

Thirty  Years'  War,  low  standards  in  war-practice  of,  35. 

Turks,  war-practice  of,  more  severe  than  that  of  the  Sara- 
cens,   13. 

Vattel,  on  the  war-practice  of  his  time,  3,  47;  life  and  work 
of,  48. 

Victoria,  Franciscus,  life  and  work  of,  26. 

Von  Moltke,  on  the  improvement  in  war-practice,  113. 

Washington,  burning  of  the  public  buildings  at,  62. 


374  INDEX. 

References    are    to    pages. 

Water  Supply,  intercepting  or  poisoning,  prohibited  by  Sar- 
acens, 12. 
Wireless  Telegraphy,  threat  to  treat  operators  as  spies,  169. 
Witnesses,  see  Noncombatants. 
Women,    see   Noncombatants. 


2  10    0 


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